Muigei v Yego & another; District Land Registrar, Uasin Gishu (Interested Party)

4. The parties to the succession cause led adavits in which they proposed the mode of distribution of the assets of the Deceased. In the adavits of the 2nd Defendant, one of the properties which she proposed was given to her was EATEC Plot 488. In a judgement delivered on 9.8.2012 Justice M. K Ibrahim (as he then was) directed that EATEC plot 488 was to go to the Plainti and her children. 5. It is apparent that even before succession, it is the 2nd Defendant who was in possession of plot EATEC 488 through Daniel Yego now deceased who was named as 1st Defendant. Documents led herein show that title for plot EATEC 488 was processed in the name of the Deceased after his demise. The plot nally became Pioneer/Ngeria Block1 (EATEC) 1858 (Suit property). The suit property was later transmitted to the Plainti on 11.2.2015 and title issued to her on the same day. 6. It is after the suit property was registered in the Plainti’s name that she brought a suit against the 1st Defendant in which she claimed the following reliefs:- 7. i. A declaration that the Defendant is a trespasser in Plainti’s land namely Pioneer/Ngeria Block 1 (EATEC) 1858. ii. An order of eviction be issued against the defendant so as to vacate the Plainti’s parcel of land No. Pioneer/Ngeria Block 1 (EATEC) 1858 iii. A permanent order of injunction be issued against the Defendant, himself his agents and or assigns or anybody acting through him from trespassing, wasting. Alienating or otherwise dealing in that land in manner that will interfere and/or extinguish the plainti’s interest of ownership and occupation. iv. Damages for loss incurred by the Defendants actions and mesne prots. v. Costs of this suit. vi. Any other and further relief that the honorable court deems t to grant. The second defendant led a further amended defence and counter-claim in which she sought the following reliefs:a. An order for declaration that the plainti’s acquisition and consequent registration of land Pioneer/Ngeria Block 1 (EATEC) 1858 was fraudulent, unprocedural. Illegal and therefore null and void. b. An order for the cancellation and revocation of title No. Pioneer/Ngeria Block 1 (EATEC) 1858. c. A permanent injunction restraining the plainti by herself, her agents, employees, servants or otherwise from dealing or interfering with title Pioneer/Ngeria Block 1 (EATEC) 1858. d. The plainti be condemned to pay the costs of this suit. 8. During the hearing, the Plainti was not present despite the hearing date having been taken in the presence of her Advocate. The Plainti’s suit was dismissed for non attendance. 9. The 2nd Defendant testied that the Plainti is her stepmother who is a second wife of her father who died on 13.10.2001. Prior to the demise of her father, she was residing on the suit property through the 1st Defendant who is now deceased. She stated that Daniel Yego died and was buried on the suit property. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21545/eng@2023-11-16 2

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10. The 2nd Defendant further stated that the application for consent of the Land Control Board was made on 27.11.2001 and a transfer signed on the same date. The 2nd Defendant testied that it was not possible for the Deceased to make an application for consent after he had died or even sign a transfer as he had already died. 11. The 2nd Defendant further testied that the registration of the suit property in the name of the Plainti was fraudulent and that she was assisted by the 3rd Defendant in the fraud. It is the 2nd Defendants evidence that the suit property was not listed as one of the Deceased’s properties in the succession cause. It’s on this basis that she wants the title to the suit property to be cancelled so that the property reverts to the Estate of the deceased for distribution. 12. I have carefully considered the evidence of the 2nd Defendant and that of DW2 Sylvester Kipkosgei Morogo. I have also examined the documents produced in support of the 2nd Defendant’s case. There is no doubt that the Deceased died on 13.10.2001. From the documents led by the 3rd Defendant, the conrmed grant in respect of the Estate of the Deceased was amended on 24.7.2014 and the suit property which was described in the old grant as EATEC plot measuring 5 acres was changed to read Pioneer/Ngeria Block 1 (EATEC) 1858. 13. Though the evidence of the 2nd Defendant was not controverted, she was bound to prove her case on a balance of probabilities. The only issue for determination is whether she has proved the fraud attributed to the Plainti and the 3rd Defendant and if so whether she is entitled to the reliefs in the counter-claim. 14. I have gone through the judgement in the succession cause. Plot EATEC 488 is what became Pioneer/ Ngeria Block 1 (EATEC) 1858. This property was bequeathed to the plainti. It was part of the properties which were listed as assets of the Deceased. It is therefore not true that it did not form part of the assets of the Deceased. The 2nd Defendant did not raise any issue when this property was given to the Plainti in the succession cause. 15. Even though prima facie, the documents which were used to have the land registered in the name of the Deceased were signed after the Deceased had died, the fact remains that the suit property rightfully belonged to her as per the distribution of the deceased’s assets. There is therefore no basis upon which this court can order cancellation of the Plainti’s title or even bar the Plainti by way of permanent injunction from what lawfully belongs to her. I nd that the 2nd Defendant has not proved her counter claim which is hereby dismissed with no order as to costs. DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 16TH DAY OF NOVEMBER, 2023. E. O. OBAGA JUDGE In the virtual presence of; M/s Lelei for 2nd Defendant. E. O. OBAGA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21545/eng@2023-11-16 3

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