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ELCPartially AllowedNot stated in the judgment as extracted· [2020] KEELC 3142 (KLR)

Gabriel Onunda Ongera v William Nyangechi Ongera & 2 others [2020] KEELC 3142 (KLR)

Environment and Land Court
13 March 2020
1,327 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cancelled a land title acquired before letters of administration existed, ruling any transfer of a deceased person's property is void.

What this practically means

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Executive summary

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The Plaintiff sued the Defendants over LR No. North Mugirango/Ikonge/576, registered in the name of Simeon Ongera Mogaka (deceased), who died in 1994. A grant of letters of administration over his estate was only taken out in 2017, yet the green card showed the property was registered in the 1st Defendant's name on 15th January 2015. The Plaintiff alleged that the 1st Defendant, in collusion with the 2nd Defendant, fraudulently caused the transfer before obtaining a grant, amounting to intermeddling with a deceased person's estate contrary to Section 45 of the Law of Succession Act. The Defendants did not enter appearance or file a defence, and the suit proceeded ex parte. The court framed two issues: whether the registration was obtained by fraud, and whether the Plaintiff was entitled to the reliefs sought. Adopting the strict standard of proof for fraud from Kinyanjui Kamau v George Kamau and Ndolo v Ndolo, the court held that no lawful transfer could have occurred between 1994 and 2017, and that the 1st Defendant's actions were fraudulent and uncontroverted. Relying on Section 80 of the Land Registration Act, the court granted rectification of the register: the 1st Defendant's title was cancelled, his name removed, and the deceased reinstated as proprietor, together with a declaration that the 2015 entry was unlawful, illegal and void, and a permanent injunction against the 1st Defendant. However, no relief was granted against the 2nd Defendant for lack of evidence of involvement in the fraud. Costs were awarded against the 1st Defendant. Judgment was delivered at Kisii on 13th March 2020 by J.M. Onyango, J.

Key legal issues

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01

Whether the registration of the suit property in favour of the 1st Defendant was fraudulent

Holding

Yes. The deceased died in 1994 and letters of administration were only taken out in 2017, so there could have been no lawful transfer between 1994 and 2017; the 1st Defendant's actions were fraudulent.

Reasoning

Applying the standard from Kinyanjui Kamau v George Kamau, the court required strict proof of fraud. The death certificate showed the deceased died on 22nd May 1994 and the green card showed registration remained in the deceased's name until 15th January 2015, when the 1st Defendant became proprietor. Since no grant existed until 2017, no lawful transfer was possible. The evidence was uncontroverted as the 1st Defendant did not enter appearance or file a defence.

p. 3
02

Whether the Plaintiff is entitled to the reliefs sought

Holding

Yes against the 1st Defendant: declaration, rectification/cancellation of title and permanent injunction; no relief against the 2nd Defendant for lack of evidence of involvement in the fraud.

Reasoning

Under Section 80 of the Land Registration Act, the court may order rectification where registration was obtained by fraud or mistake. The Plaintiff's unchallenged evidence established that the 1st Defendant had not obtained a grant when he caused the property to be registered in his favour. The claim succeeded against the 1st Defendant, entitling the Plaintiff to a permanent injunction, but the evidence did not implicate the 2nd Defendant.

p. 3

Legal principles established

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  • Allegations of fraud must be pleaded and strictly proved to a standard higher than the balance of probabilities, though not beyond reasonable doubt.
  • Section 45 of the Law of Succession Act prohibits any person from taking possession of, disposing of, or otherwise intermeddling with the free property of a deceased person except as expressly authorised by law or a grant of representation.
  • Under Section 80(1) of the Land Registration Act, the court may order rectification of the register where a registration was obtained, made or omitted by fraud or mistake.

Court orders

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  1. 1.A declaration that the transaction and/or entry made in the Register of LR No. North Mugirango/Ikonge/576 on 15th January 2015, prior to the issuance of Grant of Letters of Administration of the Estate of Ongera Mogaka (Deceased), was unlawful, illegal and void
  2. 2.Cancellation of the title in the name of the 1st Defendant, removal of his name from the register as proprietor of LR No. North Mugirango/Ikonge/576, and reinstatement of Ongera Mogaka as registered proprietor
  3. 3.A permanent injunction restraining the 1st Defendant, his agents, servants and anyone claiming under him from transferring, alienating, selling, charging, leasing, sub-dividing, interfering with or otherwise dealing with the suit property
  4. 4.Costs of the suit to be borne by the 1st Defendant

Authorities

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Legislation

  • Law of Succession ActSection 45, Section 45(1)
  • Land Registration ActSection 80, Section 80(1), Section 80(2)

Cases cited (2)

  • Kinyanjui Kamau vs George Kamau
    [2015] eKLR
  • Ndolo vs Ndolo
    (2008) 1 KLR (G & F) 742
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcel LR No. North Mugirango/Ikonge/576 (statutory jurisdiction under the Environment and Land Court Act; suit seeks rectification of register under Section 80 of the Land Registration Act)

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, "Gabriel Onunda Ongera v William Nyangechi Ongera & 2 others [2020] KEELC 3142 (KLR)", Case Analysis (2020). Not stated in the judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3142/eng@2020-03-13

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