Said Bin Seif Properties (2016) Limited (Suing as Beneficiary and Administrator of the Estate of Said Bin Seif (Deceased) & another v Director of Surveys & another (Environment & Land Case 8 of 2023) [2024] KEELC 114 (KLR)
The bottom line
#Kenya's Environment and Land Court cancelled fraudulent subdivisions of a deceased couple's Mombasa land, confirming no one can transfer a deceased person's property before succession is complete.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of the subdivisions and transfers of the suit property
The subdivision of the suit property and the subsequent subdivision and transfer were unlawful, unprocedural and a nullity, as the registered proprietors could not have authorised them and succession proceedings were pending.
The court found no evidence that the registered proprietors subdivided or transferred the premises. The succession causes were pending in 2017, so no one could deal with the parcels; only a personal administrator may administer a deceased's estate under section 79 of the Law of Succession Act, and Regulation 55 of the Land Registration Regulations bars registration of transfers of a deceased's interest before grant confirmation. The rushed subdivision and transfer, and unsupported consolidation and regularization, evidenced fraud.
Whether the defendants were complicit in the fraud
The transactions reflected fraud with the assistance of some officials of the 2nd defendant, interfering with records to deprive the plaintiffs of title.
The court noted the suspicious two-day window between creation of Plot 1715 and its transfer to third parties, an undated and unregistered instrument of transfer, DW1's failure to produce the complete transfer document, and an unexplained consolidation and regularization of plots. These omissions and irregularities supported a finding of fraudulent transactions involving officials of the 2nd defendant.
Suppression of material evidence
Missing correspondence, applications and instruments border on suppression of material evidence, denying the court a conclusive finding on defendants' liability.
The court observed that key documentation, such as the application for subdivision to the County Government of Mombasa and original transfer instruments, was missing. It suggested the plaintiffs ought to have sued the County Government of Mombasa or compelled the 2nd defendant to produce the original instruments. The missing documents denied the court a more conclusive finding.
Legal principles established
#- Subdivisions and transfers of a deceased proprietor's land effected during running succession proceedings, without the authority of the registered proprietors or personal administrators, are a nullity.
- There can be no registration of a transfer of an interest in land of a deceased proprietor until after confirmation of the grant of letters of administration.
Court orders
#- 1.Declaration that the subdivision of Plot No. 1068/XVII/MI into Mombasa/Block XVII/1715 and Mombasa/Block XVII/1716 was unlawful and is null and void
- 2.Declaration that the further subdivision of Mombasa/Block XVII/1716 into Mombasa/Block XVII/1804 and Mombasa/Block XVII/1805 and the subsequent registration in the names of Maya Binti Salim and Said Bin Seif was unlawful and is null and void
- 3.Declaration that the transfer of Mombasa/Block XVII/1716 to Abdulhakim Nur Farah and Hassan Hashi Shirwa was unlawful and is null and void
- 4.The 2nd Defendant ordered to cancel all entries relating to the subdivision of Plot No. 1068/XVII/MI and the creation of Mombasa/Block XVII/1715 and XVII/1716
- 5.The 2nd Defendant ordered to cancel all entries relating to the subdivision of Mombasa/Block XVII/1716 into XVII/1804 and XVII/1805
- 6.The 2nd Defendant ordered to cancel the transfer of Mombasa/Block XVII/1716 to Abdulhakim Nur Farah and Hassan Hashi Shirwa
- 7.The 2nd Defendant ordered to restore the parcel file of Plot No. Mombasa/Block 1068/XVII registered in the names of Maya Binti Salim and Said Bin Seif as tenants in common in equal shares
- 8.Costs of the suit awarded to the Plaintiffs
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Said Bin Seif Properties (2016) Limited (Suing as Beneficiary and Administrator of the Estate of Said Bin Seif (Deceased) & another v Director of Surveys & another (Environment & Land Case 8 of 2023) [2024] KEELC 114 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/114/eng@2024-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.