Janet Towett v John Koech;Julius Kipngetich Chepkwony (Interested Party) [2019] KEELC 3934 (KLR)
The bottom line
#A Kenyan court cancelled a land title because the owner never obtained letters of administration before inheriting her deceased grandfather's land.
What this practically means
#Executive summary
#Key legal issues
#Validity of the plaintiff's title
The plaintiff's title was invalid as it was acquired by transfer through succession without a grant of letters of administration, in breach of section 45(1) of the Law of Succession Act
The plaintiff was registered as owner long after the death of the original proprietor, Kipsoi Arap Bargak, and by her own admission had not obtained a grant of letters of administration at the time of registration. Even if the grandfather had gifted her the land, she was required to follow due process by obtaining a grant before the transfer. The Land Registrar confirmed the transfer was irregular as the succession case number was not indicated in the green card.
Defendant's occupation and competing claim
The defendant was also at fault, being in occupation contrary to section 45 of the Law of Succession Act, having bought the land from the interested party who had no letters of administration
The court held that the defendant, though contending he purchased from the beneficial owners, was occupying the land contrary to section 45 of the Law of Succession Act. The interested party, like the plaintiff, claimed a beneficial interest as a grandchild of the deceased but had not taken out letters of administration, so his interests could not crystallize.
Exercise of section 80, Land Registration Act power to cancel title
The court invoked section 80 of the Land Registration Act, 2012 to cancel the plaintiff's title so the parties could pursue their interests in the estate
Although the plaintiff's suit was dismissed, the court used its powers under section 80 to cancel the irregular registration and revert the title to the deceased original proprietor, enabling the plaintiff and interested party to pursue succession proceedings over the estate.
Standard of proof of fraud
The plaintiff's counsel argued, and the court accepted in dismissing the suit, that the plaintiff failed to prove her case on a balance of probabilities; fraud allegations by the defendant were unproved
The court found the defendant had not reported the alleged fraud to the police and had admitted the sale agreement did not specify the parcel number, no search was done, and the parties had not attended the elders' meeting. The ultimate disposition rested on the invalidity of the plaintiff's title rather than on proved fraud by any party.
Legal principles established
#- No person shall take possession of, dispose of, or otherwise intermeddle with the free property of a deceased person except as expressly authorized by law or by a grant of representation
- A transfer of a deceased person's land without a grant of letters of administration is not acquired procedurally or lawfully, even if the deceased purported to gift the land during his lifetime
- Beneficiaries of an unadministered estate must obtain letters of administration before their interests can crystallize
- A court may exercise powers under section 80 of the Land Registration Act, 2012 to cancel an irregularly acquired title and revert it to the original proprietor
Court orders
#- 1.A declaration that the registration of the Plaintiff as the owner of land parcel no. KERICHO/KABIANGA/1553 is illegal and unprocedural
- 2.Cancellation of the said registration, with the title reverting to the name of Kipsoi Arap Bargak-Deceased
- 3.Service of a copy of the judgment on the Land Registrar, Kericho to effect the necessary amendments to the title
- 4.Each party to bear their own costs
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Land Registration Act, 2012 (including section 80 powers); first-instance suit under the Civil Procedure regime (ex-parte judgment earlier set aside)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Janet Towett v John Koech;Julius Kipngetich Chepkwony (Interested Party) [2019] KEELC 3934 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3934/eng@2019-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.