Odhiambo & 2 others v Odhiambo (Environment and Land Case 33 of 2020) [2025] KEELC 6496 (KLR)

4. They aver that their late father had 7 wives; they listed all the wives and their respective children including the defendant herein, who hails from the 6th house. 5. It is however their contention that the defendant fraudulently subdivided the original land parcel and outlined the particulars of fraud thereof and in particular dealing with the property of a deceased person without the due process of court through succession. 6. They therefore argued that it is in the interest of justice that the illegal subdivisions be revoked and for a proper succession process to ensue. 7. They urged the court to allow their claim and grant the orders sought in the Amended Plaint. Defence Case 8. The Defendant entered Appearance through the firm of Odhiambo Oronga & Co. Advocates and filed a Statement of Defence dated 26th August, 2020. 9. He admitted/confirmed that the original suit parcel L.R. No.Suna West/ Wasweta II/529 was originally registered in the name of their late father, Odhiambo Onyango. 10. He dismissed the plaintifi’ suit as being vexatious, ill-motivated, frivolous, bad in law and amounting to an abuse of the court process. 11. He denied the allegations of fraudulent subdivisions and/or collusion with the Land Registrar, of the original parcel of land, without succession. He further denied the particulars of fraud outlined and put the plaintifis to strict proof thereof. 12. He maintained that the family and the plaintifis were all included and directly involved in the transfer of the suit property. He further averred that the properties were transferred in name to hold in trust for the rest of the family members. 13. It was his claim that the 1st plaintifi sold his portion of the suit property to one Peter Ongang. He further contended that all subdivisions and subsequent sales of any portion of the suit land had never been to his benefit. 14. The defendant also argued that the portions identified and allocated to each household remains intact and unsold save where the specific household has individually sold their portions of the suit property. 15. That the suit is thus intended to impeach and dispossess third parties who validly purchased portions of the suit land. He therefore urged the court to dismiss the plaintifis’ suit with costs. 16. Upon close of pleadings, the matter proceeded to hearing. Trial 17. The Plaintifi’s case proceeded for hearing ex-parte on 06.07.2023, the 3rd Plaintifi, Andrew Odhiambo testified as PW1 and thereafter closed the plaintifi’s case. He adopted his witness statement dated 04.05.2022 as his evidence in chief. 18. He also stated that the suit parcel was registered in the name of their father, who had 7 wives. He confirmed that the defendant is his step-brother. 19. His claim was that the defendant failed to institute succession proceedings in respect of the estate of their late father but went ahead and subdivided the original parcel of land and obtained the title of the suit parcels registered in his name. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6496/eng@2025-10-01 2

page 2 of 5

20. He also produced the documents on his List of Documents dated 9th March 2020 as Plaintifi Exhibits 1 – 8. He urged the court to grant them the orders sought. 21. In conclusion, he urged the court to revoke the title deed that was illegally acquired and for the same to revert to the name of his late father together with costs of the suit. 22. The plaintifi thereafter closed their case. 23. Despite being served with the hearing notice and an Afidavit of Service duly filed to that efiect, the defendant failed to attend court for hearing or send a representative or give a justifiable explanation for his absence. This court therefore deemed his case closed. Analysis and Determination 24. I have carefully reviewed the amended plaint herein, the statement of defence in response thereto, the witness testimony and the respective exhibits in totality and it is my considered opinion that the following issues arise for determination: a. Whether this court can issue an order for revocation and annulment in the nature sought. b. Whether the plaintifis have proved their case to the required standard to warrant the grant of the orders sought. c. Who shall bear the costs of the suit. A. Whether this court can issue an order for revocation and annulment in the nature sought 25. Section 80 of the of the Land Registration Act vests a court of law with the powers to cancel and/ or revoke a certificate of title and provides for instances when a court can order for revocation of a certificate of title. 26. Section 80 (1) and (2) of the Land Registration Act states as follows:(1) Subject to subsection (2), the Court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake. (2) The register shall not be rectified to afiect the title of a proprietor, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default.” 27. It is not in dispute that the parties herein are all blood related, being siblings from difierent mothers. It is also not in dispute that the original suit land was registered in the name of Odhiambo Onyango, the father of the parties herein and who is since deceased. 28. It is also common ground that the original parcel of land has since been subdivided into portions, transferred and registered in the name of the defendant. This fact was admitted by the defendant in his statement of defence and further confirmed by the certificate of search produced in support of the plaintifis’ case. 29. It is also not in contention that no succession process had/has been instituted in respect to the estate of the late Odhiambo Onyango, either at the time of the alleged subdivision and transfer of the suit parcels or at all. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6496/eng@2025-10-01 3

page 3 of 5

30. The question that therefore follows and which is at the centre of the dispute herein is on what grounds and/or basis was the suit land, which forms part of the estate of the deceased Odhiambo Onyango, subdivided and transferred in the name of the defendant herein. 31. Section 45 of the Succession Act states as follows: (1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person. 32. This court is cognizant of the limits of its jurisdiction and is mindful not to delve into any issue touching on the estate nad the division thereof which is the preserve of the High Court, sitting as a family court. 33. The court in the case of Chemey Investment Limited v Attorney General & 2 others [2018] eKLR held that title to property that is obtained fraudulently or illegally in violation of the provisions of the statute is not sacrosanct and does not enjoy protection of the law under the repealed Act. 34. Thus, having established no succession proceedings were instituted either at the time of the alleged subdivision and transfer or at all, it is clear that the defendant had no capacity or legal basis whatsoever to deal with the property forming part of the estate of their deceased father. 35. In addition, I must point that the averments made by the defendant that all the family members held a meeting where it was agreed that the land would be subdivided, transferred and registered in his name, to hold in trust for all the family members or that the subsequent sale to third parties was reduced into writing, is not a lawful and justifiable excuse and the same cannot legitimize and take the place of Grant of Letters of Administration issued in succession proceedings. 36. Consequently, it is the finding of this court that the certificate of title held by the defendant in respect of the suit parcels, was acquired unprocedurally, without following the outlined statutory provisions in the Succession Act and is therefore subject for revocation and/or cancellation. B. Whether the plaintifis have proved their case to the required standard to warrant the grant of the orders sought. 37. In support of their case, the plaintifis called one witness, the 3rd plaintifi who testified as PW1 and produced the various documents in their list of documents as Plaintifis’ Exhibits 1-8 in support of their case. 38. In view of the foregoing, it is the finding of this court that the plaintifis proved their claim satisfactorily and to the required standard and demonstrated that the certificate of title in the name of the defendant was acquired unprocedurally. 39. As a result thereof, I find that they are entitled to the reliefs sought in the Amended plaint. C.Who shall bear the costs of the suit 40. The general rule is that costs shall follow the event unless for good reason the court directs otherwise. 41. In this case, I do note that the dispute herein is a family dispute and the parties are all blood relatives and I will therefore direct each party to bear their own costs of the suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6496/eng@2025-10-01 4

page 4 of 5

Conclusion 42. The upshot of the above is that the plaintifis have proved their claim against the defendant and I accordingly allow the Amended Plaint dated 21st September, 2020 on the following terms; I. An Order of Revocation and annulment of resultant and irregular subdivision of parcels to wit; Suna West/ Wasweta II/1090, 1091, 6041 & 6749 and the same to revert to the original parcel No. L.R. No. Suna West/ Wasweta II/529 be and is hereby issued. II. Each party shall bear their own costs of the suit. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON 1ST DAY OF AUGUST, 2025. MOHAMED N. KULLOW JUDGE In presence of; N/A for the Plaintifi N/A for the Defendant Philomena W. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6496/eng@2025-10-01 5

page 5 of 5