Grace Akinyi Ajwang & another v Rosemary Atieno Abuto & 5 others [2019] KEELC 4492 (KLR)
The bottom line
#A Kisumu court cancelled land transfers made by people who sold a dead man's estate before their succession grant was confirmed, leaving the buyer and its bank with no claim to the land.
What this practically means
#Executive summary
#Key legal issues
#Whether the registration of the 1st and 2nd Defendants as proprietors of the suit land was valid
Invalid - the entry was made on the basis of a grant with no certificate of confirmation, in breach of Section 82(b)(ii) of the Law of Succession Act and while a restriction was still in place
The register showed a restriction at entry No. 4 stopping dealings, yet the names of the two petitioners in Succession Cause No. 700 of 2009 were entered under R.L 19 on the basis of a grant issued on 23rd February 2010 without any certificate of confirmation identifying the persons and shares. Section 82(b)(ii) prohibits sale of immovable property before confirmation of the grant, so the registration conferred no proprietorship powers.
Whether the 3rd Defendant obtained good title as a bona fide purchaser
No - the vendors had no title to pass, the transfer occurred while a restriction was unlifted, no consent to transfer from the Commissioner of Lands was availed, and due diligence was casual
The transfer was procured from vendors without legal capacity or lawful authority; it took place while the restriction at entry No. 4 had not been lifted and without evidence of the Commissioner of Lands' consent. Due diligence by the 3rd Defendant and its advocates was casual and the bare minimum, and no source documents supported the certificates of search. Section 26(1) of the Land Registration Act does not protect such a title.
Whether the charge in favour of the 4th Defendant is protected
No - the charge cannot subsist over a void root title; the bank may pursue the 3rd Defendant for its monies
Because the 3rd Defendant never acquired good title, the transaction securing the financial facilities cannot be allowed to subsist. Upholding the title would deprive the beneficiaries of their inheritance. The 4th Defendant, which closed its case without calling witnesses, has the option of following the 3rd Defendant for its money or alternative security.
Whether the Plaintiffs' capacity/locus standi, raised only in submissions, was a proper issue
No - matters not pleaded cannot be determined; the issue was raised for the first time in written submissions
The 3rd and 4th Defendants questioned the Plaintiffs' capacity only in written submissions, not in pleadings. Order 2 Rule 4 of the Civil Procedure Rules sets out what must be pleaded, and the Court of Appeal in DEN v PNN confirmed that parties are confined to their pleadings. The counterclaim itself sued the Plaintiffs as personal representatives, so the 3rd Defendant could not turn around and challenge their capacity.
Whether the 2nd Defendant was liable
No - her defence that she was impersonated was unchallenged; she was not liable to pay costs
The 2nd Defendant testified that her identity was used by an impersonator and that she never participated in the transactions or in Succession Cause No. 700 of 2009. Her defence was generally unchallenged, and the court accepted that her identity may have been unlawfully acquired to further the fraud.
Legal principles established
#- Sale of immovable property of a deceased's estate before confirmation of grant is prohibited and any such sale is null and void
- Indefeasibility of title under Section 26(1) of the Land Registration Act does not protect a title acquired illegally, unprocedurally or through a corrupt scheme, even where the title holder is innocent
Court orders
#- 1.Prayers (a), (c) and (e) of the plaint dated 20th April 2011 granted (declaration that the registrations were null and void ab initio, rectification of the register, permanent injunction, and costs)
- 2.The 3rd Defendant's counterclaim against the Plaintiffs dismissed with costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court under the Environment and Land Court Act over disputes relating to title to land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Grace Akinyi Ajwang & another v Rosemary Atieno Abuto & 5 others [2019] KEELC 4492 (KLR)", Case Analysis (2019). ELC Case No. 23 of 2017 (Formerly HCCC No. 58 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4492/eng@2019-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.