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ELCAllowedEnvironment & Land Case 35 of 2021· [2022] KEELC 14688 (KLR)

Pkemoi (Suing on behalf of the Estate of Yano Chelanga William - Deceased) v Samal

Environment and Land Court
8 November 2022
FNFred Nyagaka
1,695 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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What this practically means

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Executive summary

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The plaintiff, legal representative of the estate of Yano Chelanga William, sued the defendant seeking cancellation of the defendant's title to LR No West Pokot/Siyoi 'A'/4647, reversion of the land to the estate, and a permanent injunction. The plaintiff's uncontested evidence was that the deceased acquired the land on February 9, 2016 and died on December 12, 2018. On December 17, 2019 the defendant presented a transfer form purportedly executed by the deceased before an advocate, together with a Land Control Board consent application, and was registered as proprietor on August 11, 2020. Despite proper service, the defendant did not enter appearance or file a defence, and the suit proceeded to formal proof. The court found the plaintiff had discharged the burden on a balance of probabilities, holding that a transfer executed by a person who had died a year earlier was humanly impossible and illegal, amounting to clear fraud and intermeddling with the estate contrary to section 45(1) of the Law of Succession Act. The purported transfer and consent application were held incapable of passing any good title. Invoking section 80 of the Land Registration Act, the court cancelled the defendant's title, ordered the land reverted to the estate, directed surrender of the original title to the Land Registrar within 30 days, issued a permanent injunction against the defendant, and awarded the plaintiff costs. The court also noted the matter warranted referral to investigative agencies.

Key legal issues

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01

Fraudulent transfer of a deceased person's land

Holding

The transfer was fraudulent and incapable of vesting title since the deceased had died a year before the purported execution

Reasoning

The deceased died on December 12, 2018, yet a transfer form purportedly executed by him before an advocate on December 17, 2019 was used to register the defendant on August 11, 2020. Identification was purportedly by a photocopy of an ID whose number was not indicated. The court found the transaction humanly impossible and illegal, constituting clear fraud and intermeddling with the estate.

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02

Intermeddling with the estate under section 45(1) of the Law of Succession Act

Holding

The defendant breached section 45(1) by defrauding and intermeddling with the estate of the deceased

Reasoning

The court held that the defendant's actions of December 17, 2019 and August 11, 2020 defrauded and intermeddled with the estate, which is protected by law. The registration obtained by fraud was not in conformity with the law and the purported transfer was an illegality offending section 45(1).

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03

Rectification of the register under section 80 of the Land Registration Act

Holding

The court may order cancellation of a registration obtained by fraud; the defendant's title was cancelled and reverted to the estate

Reasoning

Relying on section 80 of the Land Registration Act, the court found it had power to direct cancellation of a registration obtained by fraud or mistake. Having found the registration of August 11, 2020 fraudulent, the court cancelled the title, reverted the land to the estate, and ordered surrender of the original title within 30 days.

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Legal principles established

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  • A transfer executed by a deceased person after death is a nullity incapable of passing title; registration obtained by fraud may be cancelled under section 80 of the Land Registration Act
  • No person may take possession of or dispose of free property of a deceased person except as authorised by statute (section 45(1) Law of Succession Act)

Court orders

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  1. 1.An order of immediate cancellation of the title issued to the defendant over LR No West Pokot/Siyoi 'A'/4647
  2. 2.That the said title be reverted to the estate of Yano Chelanga William
  3. 3.An order that the defendant surrender the original title to the Land Registrar, West Pokot County within 30 days for cancellation
  4. 4.A permanent injunction barring the defendant, his agents or employees from trespassing on or making use of LR No West Pokot/Siyoi 'A'/4647
  5. 5.Costs of the suit awarded to the plaintiff

Authorities

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Legislation

  • Law of Succession Actsection 45(1)
  • Land Registration Actsection 80
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land disputes); suit commenced by plaint

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, "Pkemoi (Suing on behalf of the Estate of Yano Chelanga William - Deceased) v Samal", Case Analysis (2022). Environment & Land Case 35 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14688/eng@2022-11-08

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