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ELCPartially AllowedNyamira ELC Case (Plaint dated 6th February 2015)· [2021] KEELC 1074 (KLR)

Samwel Ariga Bosire v Abagusii Otenyo Self Help Group [2021] KEELC 1074 (KLR)

Environment and Land Court
11 November 2021
5,366 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a land transfer because both buyer and seller used fraud, showing illegally obtained land titles gain no protection.

What this practically means

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Executive summary

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The Plaintiff, administrator of the estate of his late father Teresi Bosire Mokaya, sued for cancellation of register entries and titles created upon sub-division of land parcel EAST KITUTU/MWAMANGERA/2294, alleging fraud because the sub-division and transfer of one resultant parcel (No. 3048) to the Defendant, a self-help group, occurred while his father was deceased and before confirmation of the grant. The Defendant's own witness admitted that the parties agreed not to await confirmation of probate; the Plaintiff was to impersonate the deceased, sign and present transfer documents with his photograph as if the deceased were alive, and the group concealed the transaction from the Plaintiff's siblings. The court framed ten issues and found that both parties, together with unnamed Lands officials and surveyors, hatched and executed a fraudulent scheme: the transfer took place in 2008, six years before the grant was confirmed, without Land Control Board consent and without PIN numbers on the transfer forms. Applying Section 43 of the repealed Registered Land Act and Section 80 of the Land Registration Act, the court held the Defendant could not rely on the bona fide purchaser protection since it had knowledge of and substantially contributed to the fraud. Dealings before confirmation of the grant constituted intermeddling contrary to Section 45 of the Law of Succession Act, rendering the sale a nullity. The contract was also illegal and unenforceable for common illegality, so no refund was ordered. The court nullified the sale agreement and all sub-divisions, ordered rectification reverting the register to the deceased's name, cancelled the transfer of parcel 3048, and refused the Defendant's prayers for an apology, cancellation of the grant, and vacant possession. Each party bore its own costs.

Key legal issues

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01

Whether fraud attended the sub-division of EAST KITUTU/MWAMANGERA/2294 and the transfer of EAST KITUTU/MWAMANGERA/3048

Holding

Both parties participated in a fraudulent scheme: the Plaintiff impersonated his deceased father to execute transfer documents and the Defendant facilitated it; the transfer was effected in 2008, six years before the grant was confirmed on 24th September 2014

Reasoning

The court found the sale agreement was thumb-printed rather than signed, the Defendant's witness admitted the Plaintiff was to pose as the deceased to present transfer forms, no Land Control Board consent was obtained, PIN numbers were absent from the transfer application, and Lands officials and Surveyors facilitated or negligently enabled the transaction. Fraud was thus proved against both parties and third parties not before the court.

p. 3
02

The effect of intermeddling with a deceased's estate before confirmation of the grant

Holding

Any disposal or sub-division of the deceased's property before 24th September 2014 was intermeddling and unlawful, rendering the sale and all resulting registrations nullities

Reasoning

Relying on Sections 45, 55(1), 79 and 83 of the Law of Succession Act, the court held that an administrator, even if a sole or eventual beneficiary, cannot dispose of estate property before confirmation of the grant. The Plaintiff's dealings therefore offended Section 45 and were void.

p. 5
03

Whether the Defendant's title is protected under Section 43(2) of the Registered Land Act (Cap 300)

Holding

The proviso protecting a proprietor in possession for valuable consideration does not apply because the Defendant had knowledge of the fraud and substantially contributed to it

Reasoning

Under the repealed Registered Land Act and its successor, the Land Registration Act, rectification is available where registration is procured by fraud or mistake. The protection for a bona fide purchaser for value without notice was unavailable because the Defendant orchestrated the fraud and concealed it from other beneficiaries.

p. 4
04

The effect of illegality on the sale contract

Holding

The contract, if any, contravened Section 45 of the Law of Succession Act and, the illegality being held in common, is illegal, unenforceable and attracts no orders, including no refund

Reasoning

Applying Devlin LJ's threefold statement of the effect of illegality, the court held that where both parties share the illegal intent, the contract is not enforceable at all and neither party may recover under it. No refund was prayed for and payment was not proved in any event.

p. 6
05

Whether an Advocate's clerk could lawfully draw and witness the sale agreement

Holding

Preparation and witnessing of conveyancing documents by an unqualified person contrary to Section 34 of the Advocates Act is an offence and the practice is not allowed by law

Reasoning

The Defendant claimed its agreement was drawn by an advocate's clerk who witnessed it for Kshs 3,000. Section 34 of the Advocates Act prohibits unqualified persons from drawing conveyancing documents or receiving any fee for doing so; had a qualified advocate been engaged, the parties would have been advised to await completion of probate.

p. 3

Legal principles established

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  • A register may be rectified where a registration was obtained, made or omitted by fraud or mistake
  • The protection of an indefeasible title is removed where the title is procured through fraud or misrepresentation to which the proprietor is a party
  • An administrator may not dispose of or sub-divide a deceased's property before confirmation of the grant; doing so is intermeddling under Section 45 of the Law of Succession Act
  • A contract tainted with common illegality is unenforceable and no party may benefit from it
  • Fraudsters cannot benefit from their acts of fraud once detected

Court orders

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  1. 1.A rectification of the register with regard to EAST KITUTU/MWAMANGERA/2294 directing the Land Registrar, Nyamira to cancel the entry made on 10th June 2008 and any subsequent entries and revert the proprietorship to the name of TERESI BOSIRE MOKAYA forthwith
  2. 2.Cancellation of all the sub-divisions emanating from EAST KITUTU/MWAMANGERA/2294, to wit EAST KITUTU/MWAMANGERA/3045, 3046, 3047 and 3048
  3. 3.Cancellation of the transfer of EAST KITUTU/MWAMANGERA/3048 to the Defendant forthwith
  4. 4.Nullification of the agreement made on 18th December 2007 or thereabout, the closing of the Title of LR No. EAST KITUTU/MWAMANGERA/2294 effected on 10th June 2008, and all sub-divisions excised from that parcel
  5. 5.No orders in respect of the sale contract, which is illegal and unenforceable
  6. 6.Each party to bear its own costs

Authorities

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Legislation

  • Advocates Act (Cap 16 Laws of Kenya)Section 34
  • Registered Land Act (Cap 300 Laws of Kenya) (repealed)Section 43(1) and (2)
  • Land Registration Act, No. 3 of 2012Sections 26 and 80(1)
  • Law of Succession Act (Cap 160 Laws of Kenya)Sections 45, 55(1), 79, 83

Cases cited (3)

  • Alice Chemutai Too – Vs – Nickson Kipkurui Korir & 2 Others
    [2015] eKLR
  • Patel vs Singh
    Nairobi Civil Appeal No. 64 of 1985
  • Archbolds (Freightage) Ltd v S Spanglett Ltd
    [1961] 1 QB 374
Jurisdiction invoked
Section 80(1) of the Land Registration Act, No. 3 of 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Samwel Ariga Bosire v Abagusii Otenyo Self Help Group [2021] KEELC 1074 (KLR)", Case Analysis (2021). Nyamira ELC Case (Plaint dated 6th February 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1074/eng@2021-11-11

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