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ELCAllowedELC Case No. 555 of 2015· [2021] KEELC 2081 (KLR)

Rhoda Amollo Ogonda (Suing as the Admininstratix Ad Litem of the Estate of Joyce Adhiambo Ogonda) v John Onyango Nyagol & another [2021] KEELC 2081 (KLR)

Environment and Land Court
3 September 2021
1,637 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kisumu court cancelled a land buyer's title because there was no written, witnessed sale agreement and the transfer wrongly used a deceased-persons' transmission form.

What this practically means

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Executive summary

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The plaintiff, Rhoda Amollo Ogonda, sued as administratrix ad litem of the estate of Joyce Adhiambo Ogonda, seeking a permanent injunction against interference with LR. No. Kisumu/Chiga/2399, cancellation of the 1st Defendant's title, rectification of the register to reinstate the deceased's name, costs and interest. The 1st Defendant's defence was that the deceased sold him the land and lawfully transferred it in November 2009. The County Land Registrar testified there were no records of the transfer, that form R-7 (used for transmission of deceased persons' property) was employed while the proprietor was alive, and that an official search of 2/8/2010 still showed the deceased as owner despite the alleged transfer of 20/11/2009. Defence witnesses failed to establish a sale agreement: DW2 retracted his claim to have witnessed it, and the transfer was signed without an advocate. The court found there was no sale agreement complying with Section 3(3) of the Law of Contract Act, rendering the suit on contract unsustainable, and that effecting transmission on a living proprietor's land was clear illegality that could not be sanctified. The court applied the authorities of Patrick Tarzan Matu and Silverbird Kenya Limited on the mandatory nature of Section 3(3). The suit succeeded: a permanent injunction issued, the 1st Defendant's title was cancelled and the register ordered rectified to reinstate the deceased's name, with costs and interest to the plaintiff from the 1st Defendant.

Key legal issues

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01

Existence and validity of the alleged sale agreement

Holding

There was no sale agreement between the deceased and the 1st Defendant, so any claim founded on a contract for disposition of land is unsustainable under Section 3(3) of the Law of Contract Act.

Reasoning

The court evaluated the defence evidence: DW2 initially claimed to have witnessed a sale agreement but withdrew that statement, confirming he did not witness it. The transfer form was signed without an advocate near the law courts. Section 3(3) of the Law of Contract Act requires a written contract signed by all parties and attested by a witness, failing which no suit can be founded on it. Authorities cited by the court confirm the provision is mandatory and divests courts of jurisdiction where uncomplied with.

p. 2
02

Legality of the transfer effected by transmission

Holding

The transfer of the suit land to the 1st Defendant using form R-7 (transmission) while the registered proprietor was alive was illegal and could not be sanctified by the court.

Reasoning

The County Land Registrar testified that form R-7 is normally used to transmit the property of a deceased person, yet Joyce Adhiambo Ogonda was alive at the time of the transfer. There were no records of how the land was transferred, no instrument of transfer, and a certificate of official search of 2/8/2010 still showed the deceased as owner despite the alleged transfer of 20/11/2009. The court found this constituted clear evidence of illegality rendering the transaction void.

p. 2

Legal principles established

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  • No suit shall be brought upon a contract for the disposition of an interest in land unless the contract is in writing, signed by all parties and the signature of each party attested by a witness present at signing (Section 3(3), Law of Contract Act)
  • A transaction effected through transmission (form R-7) in respect of a living proprietor is illegal and cannot be sanctified by the court

Court orders

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  1. 1.A permanent injunction restraining the Defendants and each of them, their servants, agents or otherwise from entering upon, fencing, selling, disposing of, developing, using, possessing, remaining on, cultivating, weeding, harvesting from or otherwise interfering with title LR. NO. KISUMU/CHIGA/2399
  2. 2.Cancellation of the title held by the 1st Defendant and rectification of the register to reinstate the name of the deceased, Joyce Adhiambo Ogonda
  3. 3.Costs of the suit and interest thereon to be paid to the plaintiff by the 1st Defendant

Authorities

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Legislation

  • Law of Contract Act, Cap 23 Laws of KenyaSection 3(3)

Cases cited (2)

  • Patrick Tarzan Matu & Another –vs- Nassim Shariff Abdulla & 2 Others
    [2009] eKLR
  • Silverbird Kenya Limited –vs- Junction Ltd & 3 Others
    [2013] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under the Environment and Land Court Act (suit concerning title to land LR. No. Kisumu/Chiga/2399)

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, "Rhoda Amollo Ogonda (Suing as the Admininstratix Ad Litem of the Estate of Joyce Adhiambo Ogonda) v John Onyango Nyagol & another [2021] KEELC 2081 (KLR)", Case Analysis (2021). ELC Case No. 555 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2081/eng@2021-09-03

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