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ELCPartially AllowedNot stated in the judgment as provided· [2022] KEELC 210 (KLR)

Esther Matoke Mogaka v Richard Ondieki Makori & 2 others [2022] KEELC 210 (KLR)

Environment and Land Court
25 March 2022
MKMugo Kamau
3,174 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 Kenyan court voided a land transfer of a dead man's property made 22 years after his death, ruling it fraud and unlawful intermeddling.

What this practically means

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Executive summary

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The Plaintiff, a blind widow, sued over L.R. NO. WEST MUGIRANGO/BOSAMARO WEST/1497, registered in the name of her late husband Mogaka Nyarango, who died on 27/12/1977. The property was transferred on 12/05/1999 into the joint names of the Plaintiff and the 1st Defendant (her adopted son) without any grant of letters of administration. She sought cancellation of the transfer, a declaration that it was unlawful, eviction of the 1st Defendant, an injunction, general damages and costs. The Land Registrar (2nd Defendant) denied fraud, while the 1st Defendant alleged a family agreement that he be registered as trustee. The Land Registrar's evidence revealed no transfer documents, no Land Control Board consent, and only an unconfirmed copy of a grant in the file; the transfer purportedly emanated from a man dead 22 years. The court found the entire process fraudulent and an act of intermeddling contrary to Section 45 of the Law of Succession Act, rendering the transfer a nullity. Invoking Section 80(1) of the Land Registration Act and applying the Registered Land Act principles (as illustrated in Alice Chemutai Too), the court declared the 1999 entries void, ordered rectification reverting the property to the deceased's name pending succession, ordered the 1st Defendant's eviction, issued a permanent injunction against him, directed the DCIO Nyamira to investigate the fraud with a report in 60 days, and awarded costs against the 1st Defendant. General damages for trespass were disallowed.

Key legal issues

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Whether the transfer of the suit property from the deceased to the Plaintiff and 1st Defendant was proper

Holding

The transfer was fraudulent, contravened Section 45 of the Law of Succession Act as intermeddling with the estate, and was a nullity; the register is to be rectified to revert the property to the deceased's name

Reasoning

The registered owner died on 27/12/1977 yet purportedly executed a transfer on 12/05/1999. No transfer forms, no Land Control Board consent, and no grant or confirmed grant existed in the Lands Office. The 1st Defendant, who accompanied the blind Plaintiff to the Lands Office, was a party to and beneficiary of the fraud, so the statutory protection against rectification does not avail him.

p. 4

Legal principles established

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  • A transfer of a deceased person's property effected without a grant of letters of administration constitutes intermeddling and is a nullity
  • A registration obtained by fraud may be rectified under the Land Registration Act where the proprietor was a party to the fraud

Court orders

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  1. 1.A declaration that the transactions and/or entries made in the register on 12 May 1999 prior to issuance of a Grant of Letters of Administration were unlawful, illegal and void
  2. 2.The Land Registrar, Nyamira to rectify the register so that the entry of 12 May 1999 and any subsequent entries are cancelled and proprietorship reverts to MOGAKA NYARANGO pending succession
  3. 3.An order of eviction against the 1st Defendant, his agents and/or servants from LR. NO. WEST MUGIRANGO/BOSAMARO WEST/1497
  4. 4.A permanent injunction restraining the 1st Defendant and anyone claiming under him from dealing with the suit property
  5. 5.The DCIO, Nyamira to commence investigations into the transfer with a view to recommending prosecution of anyone found to have perpetrated the fraud, with a report to be filed within sixty (60) days; the Land Registrar, Nyamira to facilitate the investigations
  6. 6.The 1st Defendant to pay the costs of the suit to the Plaintiff

Authorities

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Legislation

  • Law of Succession Act, Cap 160 Laws of KenyaSection 45
  • Law of Succession Act, Cap 160 Laws of KenyaSection 55(1)
  • Law of Succession Act, Cap 160 Laws of KenyaSection 79
  • Registered Land Act, Cap 300 Laws of Kenya (repealed)Section 43(1) and (2)
  • Registered Land Act, Cap 300 Laws of Kenya (repealed)Section 143
  • Land Registration Act, No. 3 of 2012Section 26
  • Land Registration Act, No. 3 of 2012Section 80(1)

Cases cited (1)

  • Alice Chemutai Too – Vs – Nickson Kipkurui Korir & 2 Others
    [2015] e KLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land; rectification powers under 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 (4)

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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, "Esther Matoke Mogaka v Richard Ondieki Makori & 2 others [2022] KEELC 210 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/210/eng@2022-03-25

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