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ELCAllowedELC Case No. 10 of 2013· [2020] KEELC 49 (KLR)

Hesborn James Okello Keyo (suing as the legal administrator and personal representative of the estate of James Okeyo Asindi (Deceased) v Wilson Otieno Okeyo, Grace Carolyne Akinyi, Clementine Nyanjwa Jabuto, Violet Ingado Kimanani, District Land Registrar, Kisumu & Attorney General (Environment & Land Case 10 of 2013) [2020] KEELC 49 (KLR)

Environment and Land Court
30 January 2020
AOA. O. Ombwayo
1,184 words in judgment
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The bottom line

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The Environment and Land Court in Kisumu cancelled land titles fraudulently created after a landowner's death, restoring the property to his estate.

What this practically means

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Executive summary

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The plaintiff, administrator and personal representative of the estate of James Okeyo Asindi (deceased), sued six defendants by amended plaint filed on 23/10/2019, claiming that the deceased was the registered proprietor of Kisumu/Kanyakwar 'B'/698 at his intestate death on 7.9.05, and that the 4th defendant, in collusion with the 1st defendant, fraudulently caused the subdivision and transfer of that land after the death, particulars including intermeddling in the estate, transfer without confirmed letters of administration, dealing without land control board consent, and uttering forged consent and transfer forms. He sought a permanent injunction against the 1st, 2nd and 3rd defendants (current registered proprietors of parcels B/1176, B/1780 and B/1779), a declaration that all post-7.9.05 dealings were illegal, null and void, rectification of the register to revert to the deceased's name, plus costs and interest. At the hearing only the plaintiff testified; the defendants and their advocates stayed away despite service. The plaintiff produced an official search, the ad litem and confirmed grants, green cards tracing the subdivisions, and a land control board consent in the name of 'James Okeyo Asundi' dated 7/8/2006, which he disowned. The court found the plaintiff had proved the deceased's proprietorship and that transfers effected after his death were fraudulent, concluding he deserved the orders sought. Judgment was entered in the plaintiff's favour with a permanent injunction, declaration of nullity, cancellation of the resultant titles, rectification of the register, and costs and interest. The judgment was delivered by A. O. Ombwayo, J on 30 January 2020.

Key legal issues

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Fraudulent intermeddling with a deceased person's land and the remedy of rectification

Holding

The plaintiff proved that the deceased was proprietor of the suit land at his death intestate; the post-death subdivision and transfers were fraudulent, and all resulting titles were cancelled with the register to revert to the deceased's name.

Reasoning

The plaintiff produced a certificate of official search showing the deceased as registered proprietor, letters of administration ad litem and a confirmed grant, and green cards tracing the subdivisions from the original parcel. The transfers occurred after the deceased's death on 7.9.05 and relied on a land control board consent in the name of 'James Okeyo Asundi', which the plaintiff disowned. The court found the transfers to be fraud and granted the declaratory, injunctive and rectification relief in the terms prayed.

p. 2

Legal principles established

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  • A registered proprietor who has died intestate cannot lawfully transfer his land; dealings purporting to effect such a transfer constitute fraud and are null and void

Court orders

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  1. 1.A permanent injunction restraining the 1st, 2nd and 3rd defendants, their agents, servants and employees from transferring, alienating, selling, trespassing upon or otherwise dealing in parcels Kisumu/Kanyakwar B/1176, B/1780 and B/1779 in any way adverse to the interests of the estate of the deceased and his beneficiaries
  2. 2.A declaration that all dealings affecting land parcel Kisumu/Kanakwar B/698 post 7.9.05 were illegal, irregular, null and void
  3. 3.An order directing the 4th defendant to cancel all resultant titles, namely parcels Kisumu/Kanyakwar B/1779, B/1780 and B/1176, and rectify the register to revert to the pre 7.9.05 position in the name of James Okeyo Asindi
  4. 4.Costs and interest of the suit to the plaintiff
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land (Article 162(2)(b) of the Constitution; Environment and Land Court Act) - invoked by filing of plaint, not expressly stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Hesborn James Okello Keyo (suing as the legal administrator and personal representative of the estate of James Okeyo Asindi (Deceased) v Wilson Otieno Okeyo, Grace Carolyne Akinyi, Clementine Nyanjwa Jabuto, Violet Ingado Kimanani, District Land Registrar, Kisumu & Attorney General (Environment & Land Case 10 of 2013) [2020] KEELC 49 (KLR)", Case Analysis (2020). ELC Case No. 10 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/49/eng@2020-01-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.