Samwel Odongo Omedo v Harrison Ochieng Kojwang [2020] KEELC 2622 (KLR)
The bottom line
#A Kenyan court dismissed a land claim because the wrong court procedure was used to challenge a title obtained from a dead man.
What this practically means
#Executive summary
#Key legal issues
#Whether Order 37 Rule 1 of the Civil Procedure Rules is the proper procedure for an administrator to challenge a transfer of the deceased's registered land
It is not; the provision does not envisage a claim by an administrator against a person allegedly illegally registered as proprietor, and title cannot be cancelled by such an originating summons
Order 37 Rule 1 permits executors, administrators, trustees and persons claiming as creditors, devisees, legatees, heirs or legal representatives to take out an originating summons. The court held the provision applies only to property declared part of the deceased's estate; the suit property was not part of the estate and the defendant was not a creditor, devisee, legatee, heir or legal representative. The proper remedy was a suit for cancellation of the fraudulently obtained title.
Whether the plaintiff proved adverse possession
The adverse possession claim was withdrawn and, in any event, the plaintiff was unsure of his claim and did not demonstrate occupation of the whole parcel
The court found the plaintiff uncertain whether to claim adverse possession, cancellation/rectification of title, or an interest in the estate. No evidence of gift inter vivos, of the plaintiff putting up a home on the whole parcel, or of his father caring for the deceased was adduced. The plaintiff withdrew prayers 1, 3, 4 and 5, ending the adverse possession claim.
Whether the transfer of 7th November 1996 was fraudulent given the registered proprietor's death in 1986
If Guya Odongo died in 1986, the 1996 transfer indicates fraud or illegality in the defendant's acquisition of title
The court observed that a dead man could not have transferred property in 1996, so if the death in 1986 is established the transfer was irregular and possibly a case of title obtained by fraud. However, counsel's invocation of Article 40(6) of the Constitution and section 26(1) of the Land Registration Act was held not to assist within Order 37 proceedings; the proper course was a fresh suit for cancellation of title.
Legal principles established
#- Title to property cannot be cancelled by virtue of an Originating Summons filed under Order 37 of the Civil Procedure Rules 2010
- Adverse possession cannot be invoked where the registered owner acquired registration by way of fraud, illegality or corruption
Court orders
#- 1.The suit is dismissed with costs
- Jurisdiction invoked
- Order 37 Rule 1 of the Civil Procedure Rules 2010 (originating summons for relief affecting an heir/administrator of a deceased person's estate)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samwel Odongo Omedo v Harrison Ochieng Kojwang [2020] KEELC 2622 (KLR)", Case Analysis (2020). ELC 268 of 2015 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2622/eng@2020-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.