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ELCAllowedELC 730 of 2015 (Formerly HCCC No. 171 of 2010)· [2020] KEELC 2508 (KLR)

Fredrick Juma Ahija (Suing as the administrator of the Estate of the late Owino Ahija Nyagol v Jason Oyola Openda & 2 others [2020] KEELC 2508 (KLR)

Environment and Land Court
22 May 2020
AOA.O. Ombwayo
1,612 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a land title because a buyer took a deceased co-owner's half share without the family's legal consent, and gave the family their land back.

What this practically means

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Executive summary

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The plaintiffs, administrators of the estate of the late Owino Ahija Nyagol, sued the 1st defendant, the registered proprietor of South Sakwa/Migwena/897 (approx. 15.5 Ha), seeking a declaration that the parcel was illegally transferred to the 1st defendant, cancellation of his title, rectification of the register so as to restore the plaintiffs' half share, and a permanent injunction. The green card showed the parcel was first registered on 24/6/1974 in the names of Openda Omolo (the 1st defendant's father) and Owino Nyagol Ahija (the plaintiffs' father) in half shares each, both then already deceased. On 17/10/2002 the whole parcel was registered in the 1st defendant's name without consideration of Owino Nyagol Ahija's estate. The court found the parties' fathers were tenants in common, so on death each share had to devolve through the deceased's estate under Section 103(1) of the repealed Registered Land Act Cap 300 and Section 91(5) of the Land Registration Act, 2012. The 1st defendant's acquisition of the plaintiffs' half share was held illegal, null and void, and unprocedural, falling outside the indefeasibility protection of Section 26(1) of the Land Registration Act and outside Article 40(6) of the Constitution. Rectification was available under Section 143(1) of the repealed Act. On a balance of probabilities the court granted the declaration, cancelled the 1st defendant's title, ordered rectification of the register restoring the plaintiffs' half portion, issued a permanent injunction, and awarded costs to the plaintiffs. Judgment was delivered electronically on 22 May 2020 pursuant to COVID-19 directions.

Key legal issues

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01

Nature of the co-ownership and devolution of a deceased co-proprietor's share

Holding

The original proprietors were tenants in common; on death, each share was to be administered as part of the deceased's estate, and the 1st defendant's acquisition of the plaintiffs' father's half share was illegal, null and void.

Reasoning

The register showed the parcel was registered in 1974 in the names of Openda Omolo and Owino Nyagol in half shares each, both then deceased. Under Section 103(1) of the repealed Registered Land Act Cap 300 and Section 91(5) of the Land Registration Act 2012, a tenant in common's undivided share on death forms part of their estate and cannot be dealt with except with written consent of the remaining tenants. The 2002 transfer of the whole parcel to the 1st defendant without consideration of Owino Nyagol's estate breached these provisions.

p. 2
02

Indefeasibility of title and its limits

Holding

Although Section 26(1) of the Land Registration Act, 2012 confers prima facie and indefeasible title, that protection does not extend to a title acquired illegally, unprocedurally or through a corrupt scheme, nor to unlawfully acquired property under Article 40(6) of the Constitution.

Reasoning

The court invoked Section 26(1)(b) of the Land Registration Act, 2012 and Article 40(6) of the Constitution, which exclude protection for property unlawfully acquired. Finding the 1st defendant's title was procured un-procedurally, the court held it fell outside statutory and constitutional protection. Rectification was also available under Section 143(1) of the repealed Registered Land Act, which permits the court to cancel or amend a registration obtained by fraud or mistake.

p. 3

Legal principles established

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  • On the death of a tenant in common, the deceased's share must devolve to the legal representative of the estate and cannot be dealt with to a stranger without written consent of the remaining tenant(s).
  • A title acquired illegally, unprocedurally or through a corrupt scheme is not protected under Section 26(1) of the Land Registration Act, 2012 and cannot benefit from Article 40 of the Constitution.

Court orders

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  1. 1.A declaration that land parcel No. SOUTH SAKWA/MIGWENA/897 was illegally transferred to the 1st defendant
  2. 2.An order cancelling the 1st defendant's title
  3. 3.An order that the register be rectified and the plaintiffs be given half portion of SOUTH SAKWA/MIGWENA/897
  4. 4.A permanent injunction restraining the 1st defendant, his agents, servants or anybody claiming through him from interfering with the plaintiffs' peaceful occupation and use of their half portion of SOUTH SAKWA/MIGWENA/897
  5. 5.Costs of the suit to the plaintiff
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land; cause of action arose within the Court's territorial jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Fredrick Juma Ahija (Suing as the administrator of the Estate of the late Owino Ahija Nyagol v Jason Oyola Openda & 2 others [2020] KEELC 2508 (KLR)", Case Analysis (2020). ELC 730 of 2015 (Formerly HCCC No. 171 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2508/eng@2020-05-22

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