Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowed· [2024] KEELC 114 (KLR)

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)

Environment and Land Court
25 January 2024
2,037 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

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

#
The Plaintiffs, administrators and beneficiaries of the estates of Said Bin Seif and Maya Binti Salim, registered as tenants in common in equal shares of Title Number Mombasa/Block XVII/1068 since 2nd May 1965, discovered upon requisitioning the parcel file for distribution to beneficiaries under grants from the High Court Succession Cause No. 326 of 2013 and Mombasa Kadhi's Court Succession Petition No. 10 of 2014, that the property had been subdivided on 28th January 2015 into Mombasa/Block XVII/1715 and XVII/1716, with Plot 1716 transferred to Abdulhakim Nur Farah and Hassan Hashi Shirwa two days later, and Plot 1715 further subdivided on 25th April 2017 into Plots 1804 and 1805, registered back to the deceased proprietors. The Plaintiffs alleged conspiracy and fraud by the 1st and 2nd Defendants; the Defendants denied this, asserting the dealings were lawful and approved by the County Government of Mombasa. The court found no evidence that the registered proprietors authorised the dealings, noted that succession proceedings were pending so no one could deal with the parcels, that only personal administrators may deal with a deceased's estate under section 79 of the Law of Succession Act, and that Regulation 55 of the Land Registration Regulations bars registration of a deceased proprietor's interest before grant confirmation. The rushed subdivision, undated and unregistered transfer instrument, unexplained consolidation and regularization, and missing documents evidenced fraud involving some officials of the 2nd defendant. The court declared the subdivisions and transfer null and void, ordered cancellation of the entries, restoration of the parcel file, and awarded costs to the Plaintiffs.

Key legal issues

#
01

Lawfulness of the subdivisions and transfers of the suit property

Holding

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.

Reasoning

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.

p. 4
02

Whether the defendants were complicit in the fraud

Holding

The transactions reflected fraud with the assistance of some officials of the 2nd defendant, interfering with records to deprive the plaintiffs of title.

Reasoning

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.

p. 4
03

Suppression of material evidence

Holding

Missing correspondence, applications and instruments border on suppression of material evidence, denying the court a conclusive finding on defendants' liability.

Reasoning

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.

p. 4

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. 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. 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. 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. 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. 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. 6.The 2nd Defendant ordered to cancel the transfer of Mombasa/Block XVII/1716 to Abdulhakim Nur Farah and Hassan Hashi Shirwa
  7. 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. 8.Costs of the suit awarded to the Plaintiffs

Authorities

#

Legislation

  • Law of Succession ActSection 79
  • Land Registration RegulationsRegulation 55

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.