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ELCAllowedBusia ELC Case (number not stated in judgment; plaint dated May 4, 2022, filed May 11, 2022)· [2023] KEELC 900 (KLR)

Mubasu & another v Ekesa (Environment & Land Case E007 of 2022) [2023] KEELC 900 (KLR)

Environment and Land Court
13 February 2023
BOBoaz N. Olao
1,806 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Busia court cancelled a forged title issued over a dead man's land, confirming families can reclaim land stolen after a loved one's death.

What this practically means

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Executive summary

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The plaintiffs, children of the late John Odipo Mubasu, sued the defendant for cancellation of a title deed over land parcel Bukhayo/Mundika/11701. The deceased was the first registered proprietor until his death on December 23, 2017. In succession proceedings (Busia CMCC Succession Cause No 194 of 2019) the plaintiffs obtained a confirmed grant and the suit land was decreed to them, but when they sought transmission at the Busia Lands Registry they discovered the defendant had been registered as proprietor on April 19, 2018, four months after the death, and held a second title. The defendant, though served, did not enter appearance or file a defence. At formal proof, the Land Registrar Busia testified that no transfer documents existed in the registry to support the defendant's registration and confirmed a second title had been fraudulently obtained. The court found the title a forgery, observed that crooked registry officers were likely complicit, and lamented the prevalence of land fraud at the Busia Registry. Holding that the plaintiffs had established their case, the court cancelled the defendant's title dated April 19, 2018 and ordered him to pay the plaintiffs' costs. The judgment, delivered by Boaz N. Olao J on February 13, 2023 by electronic mail, also referenced an earlier fraud case before the same court and urged the Registry to declare the defendant persona non grata.

Key legal issues

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01

Fraudulent acquisition of title over a deceased person's land

Holding

The title issued to the defendant was a forgery and is liable to cancellation

Reasoning

The deceased was the first registered proprietor and died on December 23, 2017, yet the defendant was registered on April 19, 2018 with no transfer documents in the registry. The land formed part of the confirmed estate for transmission to the plaintiffs. The court found the fraud proved on uncontroverted evidence and ordered cancellation of the title.

p. 3
02

Costs in an undefended suit

Holding

Plaintiffs awarded costs despite the suit being undefended

Reasoning

The court exercised its discretion to award costs because the plaintiffs incurred expenses prosecuting their case and costs follow the event even where a suit is not defended.

p. 4

Legal principles established

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  • Costs follow the event even in an undefended suit

Court orders

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  1. 1.The title deed to land parcel No Bukhayo/Mundika/11701 issued in the name of Charles Moris Odunga Egesa on April 19, 2018 is cancelled
  2. 2.The defendant to meet the plaintiffs' costs

Authorities

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Legislation

  • Law of Succession Actnot specified (succession proceedings referred to)
  • Land Control Actnot specified

Cases cited (1)

  • William Ongaria Okello -v- Benga Emokoli Esike
    Busia Elc Case No 82 of 2013
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land title disputes (Environment and Land Court 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, "Mubasu & another v Ekesa (Environment & Land Case E007 of 2022) [2023] KEELC 900 (KLR)", Case Analysis (2023). Busia ELC Case (number not stated in judgment; plaint dated May 4, 2022, filed May 11, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/900/eng@2023-02-13

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