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ELCAllowedBungoma ELC (not stated in judgment; formerly filed 19 April 2002)· [2020] KEELC 615 (KLR)

Henry Wambetsa Mutondo (Substituted by Hellen Kombo Makomere) v Moses Jemini Barasa [2020] KEELC 615 (KLR)

Environment and Land Court
19 November 2020
3,701 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Bungoma cancelled a land title obtained through a fake succession case, returning the land to the original owner's family.

What this practically means

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Executive summary

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The original plaintiff, Henry Wambetsa Mutondo (substituted on his death by his daughter Hellen Kombo Makomere), sued the defendant seeking cancellation of the defendant's registration of land parcel Bungoma/Naitiri/517 and transfer of the parcel to himself. The plaintiff claimed he was the original allottee of the parent parcel Bungoma/Naitiri/213 from the Settlement Fund Trustees, but Priscilla Nasimiyu Wekesa fraudulently procured Bungoma Succession Cause No 17 of 1990 by falsely declaring him dead, transmitted the land to herself, sub-divided it, and the defendant later retained the suit land. The defendant denied the plaintiff's allottee status, asserting his late father purchased the land in 1965, and alternatively pleaded adverse possession. The court answered the six agreed issues: the plaintiff was the registered proprietor after the Settlement Fund Trustees; the succession cause was a ploy to defraud the plaintiff's estate, the grant being unconfirmed and procured while the plaintiff was alive; no 1965 sale was proved; the land was sub-divided with the defendant registered over the suit land; and the defendant's title was procured fraudulently, of which he was privy. His registration was cancellable under section 143 of the repealed Registered Land Act and section 80 of the Land Registration Act, and could not claim Article 40 protection; his adverse possession plea failed as the land was registered in his own name. Judgment was entered for the plaintiff cancelling the defendant's registration, directing the Land Registrar Bungoma to issue a new title to the plaintiff, with costs to the plaintiff.

Key legal issues

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01

Whether the plaintiff was the original allottee and registered proprietor of Bungoma/Naitiri/213

Holding

Yes; after the Settlement Fund Trustees, the plaintiff became registered proprietor, as shown by the Green Card and unchallenged documents.

Reasoning

The Green Card showed first registration in the Settlement Fund Trustees' name on 10 October 1984 and registration in the plaintiff's name on 9 July 1990. Nothing suggested the land was ever registered in the defendant's father's name, and the alleged 1965 sale agreement was not proved. Receipts for payments to the Settlement Fund Trustees and the District Adjudication Officer's letter corroborated the plaintiff's case.

p. 3
02

Whether Priscilla Nasimiyu Wekesa lawfully acquired the land through Bungoma P&A No 17 of 1990

Holding

No; the succession cause was a contrivance to defraud the plaintiff's estate since the plaintiff was alive and not the deceased named.

Reasoning

The grant described the deceased as Wekesa Wakonya also known as Henry Mutondo, yet no evidence showed the plaintiff bore those alias names. The land was still registered to the Settlement Fund Trustees when the grant issued, and the grant was never confirmed. Acquiring a living person's land through a fraudulent succession cause was a ploy and could transmit no lawful title.

p. 3
03

Whether the defendant holds a proper and lawful title to the suit land

Holding

No; his title derived from a fraudulent process and is cancellable under section 143 of the repealed Registered Land Act and section 80 of the Land Registration Act.

Reasoning

The defendant was privy to his mother's fraud: his own testimony confirmed the plaintiff and Wekesa Wakhonya were different persons, and he knew his mother was not a beneficiary of the plaintiff's estate. A title founded on a nullity cannot stand; a nullity begets a nullity, and fraud-affected registration cannot enjoy Article 40 protection.

p. 5
04

Whether the defendant could claim the suit land by adverse possession

Holding

No; adverse possession cannot be claimed over land registered in one's own name.

Reasoning

The defendant pleaded alternatively that he was entitled by adverse possession having resided openly since 1965. However, section 38 of the Limitation of Actions Act permits such a claim only against land registered in another's name. Since the suit land was registered in the defendant's own name, the claim was legally impossible and was treated as a fleeting reference without conviction.

p. 5

Legal principles established

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  • A court may determine an unpleaded issue arising from the facts stated by the parties or their advocates where a decision is necessary to determine the dispute.
  • A thief acquires no transferable right in stolen property; such a transaction is void ab initio and the property is traceable.
  • A registration obtained by fraud may be cancelled and cannot attract constitutional protection of property rights.
  • Adverse possession is only available against land registered in the name of another person.

Court orders

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  1. 1.The registration of the defendant as the proprietor of the land parcel NO BUNGOMA/NAITIRI/517 is hereby cancelled for having been obtained fraudulently.
  2. 2.The Land Registrar Bungoma shall forthwith cancel the defendant's names from the register of land parcel NO BUNGOMA/NAITIRI/517 and issue a new title thereto in the names of the plaintiff.
  3. 3.The defendant shall meet the costs of this suit.

Authorities

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Legislation

  • Registered Land Act (repealed)Section 143
  • Land Registration ActSection 80
  • Law of Succession ActSection 45
  • Limitation of Actions ActSection 38
  • Constitution of KenyaArticle 40
  • Civil Procedure RulesSection 27(1)

Cases cited (5)

  • ODD JOBS .V. MUBIA
    1970 E.A
  • HERMAN P. STEYN .V. CHARLES THYS
    1997 eKLR
  • SAMSON KAIRU CHACHA .V. ISAAC KIIRU KINGORI
    [2016 eKLR]
  • JANE GACHUKI GATHELI .V. PRISCILLA NYAWIRA GITUNGU
    2008 eKLR
  • BUNJAMIN LEONARD MACFOY .V. UNITED AFRICA COMPANY LTD
    1962 AC 152
Jurisdiction invoked
Environment and Land Court jurisdiction over land title (Land Registration Act; Civil Procedure Act/Rules)

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, "Henry Wambetsa Mutondo (Substituted by Hellen Kombo Makomere) v Moses Jemini Barasa [2020] KEELC 615 (KLR)", Case Analysis (2020). Bungoma ELC (not stated in judgment; formerly filed 19 April 2002). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/615/eng@2020-11-19

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