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ELCPartially AllowedPetition No. 11 of 2019· [2020] KEELC 2738 (KLR)

David Kandie v Land Registrar Kwale & 2 others [2020] KEELC 2738 (KLR)

Environment and Land Court
12 May 2020
AOA. Omollo
3,217 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kadhi's Court cannot hand out land titles that belonged to a living owner—the High Court-level land court cancelled the fraudulent succession and restored the rightful owner.

What this practically means

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Executive summary

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The petitioner, registered owner of Kwale/Diani S.S/464 since 2008, petitioned the Environment and Land Court at Mombasa challenging decisions of the Kadhi's Court at Kwale in Succession Cause No. 155 of 2018, in which the 3rd respondent was granted and confirmed letters of administration over the petitioner's sub-divisions Kwale/Diani/2845-2848 and directed that titles issue in his name. The petitioner complained that the properties were not estate assets, that he was denied a hearing when his application for revocation was struck out on the ground that he did not profess the Muslim faith, and that the Land Registrar complied by issuing titles to the 3rd respondent. The 3rd respondent and two Interested Parties (bona fide purchasers of parcels 2845 and 2848) opposed, alleging the petitioner's title was forged, that he was charged with forgery, and that the petition was an abuse of process given pending suits. The court framed four issues and held that the petition was properly before it; the Chief Magistrate's Court could not question Kadhi's Court decisions, so the multiple-suits objection failed. It found the properties were registered in the deceased's name only in December 2013, over eight years after her death in 2005, with no evidence of a pre-death registration process, and that a challenge to the deceased's title ousted the Kadhi's Court's jurisdiction. No finding of forgery was made absent a cross-petition or any civil or criminal finding. The court declared the Kadhi's Court decisions unconstitutional and unlawful, ordered cancellation of the titles issued to the 3rd respondent and re-registration in the petitioner's name, refused general damages for want of proof, and awarded the petitioner costs. Judgment was delivered electronically on 12th May 2020 owing to the Covid-19 pandemic.

Key legal issues

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01

Abuse of process by filing multiple suits

Holding

The petition was not an abuse of process; the pending suit (Kwale CMCC 80 of 2018) could not entertain the constitutional issues because the magistrate's court cannot question Kadhi's Court decisions.

Reasoning

The 3rd respondent and Interested Parties argued the petitioner was forum shopping, pointing to Kwale CMCC No. 80 of 2018 and JR Application No. 17 of 2019. The court found the JR application raised different issues (prohibition of criminal proceedings), and that although the prayers could have been determined in the pending suit, the Chief Magistrate's Court shares concurrent jurisdiction with the Kadhi's court and cannot question its decisions, so the multiple-suits objection failed.

p. 4
02

Whether the suit properties formed part of the deceased's estate

Holding

The properties did not form part of the deceased's estate; registration in the deceased's name occurred on 10th December 2013, long after her death on 14th March 2005, and no evidence of a pending registration process before death was produced.

Reasoning

The petitioner showed he was registered as owner of Kwale/Diani S.S/464 in 2008 and sub-divided it in December 2013 with Land Control Board consent. The 3rd respondent relied on a 1978 offer letter mentioning no plot number and registers showing the deceased registered as owner and titled only in December 2013. No evidence of a process initiated before death was annexed, so the properties could not vest as estate assets.

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Jurisdiction of the Kadhi's Court

Holding

Once the deceased's title to the properties was challenged, the Kadhi's Court's succession jurisdiction was ousted; it could not confer ownership of third-party property on the 3rd respondent.

Reasoning

Succession jurisdiction extends only to the free property of the deceased. Where an application challenges whether the registered assets belong to the estate, that question must be determined before the assets are vested in an administrator. The Kadhi's Court conferred the petitioner's titled properties on the 3rd respondent without such determination, rendering its decisions unconstitutional and unlawful.

p. 4

Legal principles established

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  • Property constitutes the estate of a deceased person only if it was registered in her name at the time of death.
  • Once a challenge is raised that the properties vested by a Kadhi's Court succession cause belong to a third party, the jurisdiction of the Kadhi's court is ousted.
  • A finding of forgery cannot be made in a constitutional petition where no cross-petition is filed and no civil or criminal finding of fraud exists.

Court orders

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  1. 1.Declaration that the 2nd respondent failed to observe the rule of law in making decisions meant to deprive the Petitioner's rights.
  2. 2.Declaration that all decisions of the 2nd respondent in Kwale Kadhi's Court Succession Cause No. 155 of 2018 conferring ownership of Titles Nos. Kwale/Diani/2845, 2846, 2847 and 2848 on the 3rd respondent were unconstitutional and unlawful.
  3. 3.Direction to the 1st respondent to cancel all title deeds registered in the name of the 3rd respondent, his agents, assigns, legal representatives or persons claiming under him in respect of Titles Nos. Kwale/Diani/2845, 2846, 2847 and 2848 and re-register the properties in the Petitioner's name.
  4. 4.Refusal of damages as none was proved.
  5. 5.Costs of the petition awarded to the Petitioner.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 19, 20, 21(1), 23, 40, 50, 60, 165, 170
  • Law of Succession Act Cap 160Section 3(1), Section 70
  • Kadhi's Courts ActSection 5
  • Probate and Administration Rules
  • Public Officer Ethics Act Cap 183
Jurisdiction invoked
Articles 23, 40, 60, 165 and 170 of the Constitution of Kenya, 2010

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, "David Kandie v Land Registrar Kwale & 2 others [2020] KEELC 2738 (KLR)", Case Analysis (2020). Petition No. 11 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2738/eng@2020-05-12

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