[2017] KEELC 1725 (KLR)
The court found that the Plaintiff's deceased husband was the registered proprietor of the suit land and that the Plaintiff, as administrator of his estate, had produced uncontroverted evidence showing that the land was transferred to the 1st Defendant six years after the registered proprietor's death. There was no...
Source-derived case information.
- Citation
- [2017] KEELC 1725 (KLR)
- Parties
- Plaintiff: Esther Mutile Mutiso; Defendant: Rose Mueni Schultz; Defendant: Machakos District Land Registrar
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 272 of 2012
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Plaintiff's suit allowed as prayed.
- Judges
- OA Angote
- Legal Topics
- Fraudulent Transfer, Rectification of Register, Title Cancellation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Mutile Mutiso
Plaintiff
Rose Mueni Schultz
Defendant
Machakos District Land Registrar
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the transfer of the suit land to the 1st Defendant was fraudulent.
- 2 Whether the Plaintiff is entitled to cancellation of the 1st Defendant's title and rectification of the land register.
Ratio Decidendi
The court found that the Plaintiff's deceased husband was the registered proprietor of the suit land and that the Plaintiff, as administrator of his estate, had produced uncontroverted evidence showing that the land was transferred to the 1st Defendant six years after the registered proprietor's death. There was no evidence of a sale or consent from the estate, and the 1st Defendant failed to contest the claim. The court held that the transfer was fraudulent and therefore null and void. Consequently, the Plaintiff was entitled to cancellation of the 1st Defendant's title and rectification of the register to reflect the name of the deceased proprietor.
Court Disposition
Plaintiff's suit allowed as prayed.
Orders
- The transfer of the suit land to the 1st Defendant is declared null and void.
- The 2nd Defendant is directed to rectify the land register to reflect the name of the Plaintiff's deceased husband as proprietor.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 272 OF 2012
ESTHER MUTILE MUTISO ...............................................PLAINTIFF
VERSUS
ROSE MUENI SCHULTZ ........................................1ST DEFENDANT
MACHAKOS DISTRICT LAND REGISTRAR .......2ND DEFENDANT
JUDGMENT
1. In the Plaint dated 25th July, 2012, the Plaintiff has averred that between 1976 and 2003, her deceased husband was the registered proprietor of parcel of land number Mbiuni/Mbuini/257 (the suit land); that the land is fully occupied by the Plaintiff and that on 23rd June, 2011, she received a demand letter from the Defendant alleging that she had entered the suit land unlawfully.
2. The Plaintiff has averred that when she conducted an official search, she discovered that the suit land had been transferred to the Defendant in the year 2003, six (6) years after the death of her husband.
3. The Plaintiff is seeking for an order cancelling the 1st Defendant’s title and directing the 2nd Defendant to rectify the register to reflect the name of her deceased husband.
4. Although the 1st Defendant was served with Summons to Enter Appearance, she neither entered appearance nor filed a Defence.
5. The Plaintiff, PW1, informed the court that her husband was the registered proprietor of the suit land; that she is the administrator of the Estate of her late husband and that she is the one who is occupying the suit land with her family.
6. The Plaintiff produced in evidence the original Certificate of Death of the late Joseph Mutiso Ngui which shows that he died on 13th April, 1997.
7. Although her late husband never sold the suit land, PW1, produced in evidence the certified copy of the register showing that the land was transferred to the 1st Defendant on 22nd December, 2003.
8. The uncontroverted evidence before me shows that the suit land was fraudulently registered in favour of the 1st Defendant on 22nd December, 2003.
9. In the circumstances, the said transfer to the 1st Defendant is null and void.
10. For those reasons, I allow the Plaintiff’s Plaint dated 25th July, 2012 as prayed.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 29TH DAY OF SEPTEMBER, 2017.
O. A. ANGOTE
JUDGE