[2022] KEHC 16248 (KLR)
The court found that the respondent admitted to having fraudulently and unprocedurally registered the entire land parcel Kisumu/Nyalunya/2550 in his name, contrary to the certificate of confirmation of grant which required the property to be held in trust for both parties in equal shares. The court had already...
Source-derived case information.
- Citation
- [2022] KEHC 16248 (KLR)
- Parties
- Applicant: Monica Obado Odongo; Respondent: Maurice Otieno Odongo
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 143 of 2015
- Procedural Posture
- Probate and Administration / Ruling on Notice of Motion for Rectification of Land Register and Related Orders
- Outcome
- Application allowed; land register to be rectified in accordance with the certificate of confirmation of grant; each party to bear own costs.
- Judges
- RE Aburili
- Legal Topics
- Succession of Estates, Confirmation of Grant, Fraudulent Land Transfer, Rectification of Land Register
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Monica Obado Odongo
Applicant
Maurice Otieno Odongo
Respondent
Procedural Posture
Probate and Administration / Ruling on Notice of Motion for Rectification of Land Register and Related Orders
Legal Issues
- 1 Whether the registration of Maurice Otieno Odongo as sole proprietor of Kisumu/Nyalunya/2550 was contrary to the certificate of confirmation of grant.
- 2 Whether the land register should be rectified to reflect the confirmed beneficiaries and shares as per the grant.
- 3 Whether the respondent's admission of fraud warrants revocation of the registration and rectification of the register.
Ratio Decidendi
The court found that the respondent admitted to having fraudulently and unprocedurally registered the entire land parcel Kisumu/Nyalunya/2550 in his name, contrary to the certificate of confirmation of grant which required the property to be held in trust for both parties in equal shares. The court had already revoked the respondent's registration as proprietor in a previous order, and found that this order sufficiently disposed of the application. For completeness, the court ordered rectification of the land register to delete the respondent's name and to register the property in accordance with the certificate of confirmation of grant. The court emphasized that compliance with the terms...
Court Disposition
Application allowed; land register to be rectified in accordance with the certificate of confirmation of grant; each party to bear own costs.
Orders
- The Land Register in respect of land parcel No. Kisumu/Nyalunya/2550 is to be rectified and the name Maurice Otieno Odongo deleted.
- The said title is to revert and be registered according to the Certificate of Confirmation of Grant dated April 30, 2018.
Full Case Text
Judgment text and source record
25 paragraphs
In re Estate of Richard Otieno Odongo (Deceased) (Probate & Administration 143 of 2015) [2022] KEHC 16248 (KLR) (13 December 2022) (Judgment)
Neutral citation: [2022] KEHC 16248 (KLR)
Republic of Kenya
In the High Court at Kisumu
Probate & Administration 143 of 2015
RE Aburili, J
December 13, 2022
In the matter of the estate of Richard Otieno Odongo- deceased
Between
Monica Obado Odongo
Applicant
and
Maurice Otieno Odongo
Respondent
Judgment
1. This Ruling determines the applicant’s notice of motion dated 19/9/2019 in which the applicant seeks the following prayers:a.The Land Registrar Kisumu be ordered to remove the name of Maurice Otieno Odongo in the register of land and the land be registered according to the certificate of confirmation of grant dated April 30, 2018 made by this honourable court.b.The register of land in respect of Kisumu/Nyalunya/2550 be rectified and the name Maurice Otieno Odongo be removed/deleted and the same reverts and or registered according to the certificate of confirmation of grant dated April 30, 2018. c.Pending the hearing and determination of the suit, temporary order of injunction be issued against Maurice Otieno Odongo or his agent from dealing with land parcel Kisumu/Nyalunya/2550 since he is likely to sell the land/charge to financial institution.d.Costs be in the cause.
2. The application is supported by the grounds on the face of the motion and the applicant’s sworn affidavit of even date where she deposes that the deceased herein was her biological son and the grant emanating therefrom had been confirmed in her favour.
3. She deposes that according to the Certificate of Confirmation of grant, she had been allocated land parcel No. Kisumu/Nyalunya/2550 to hold in trust for herself and Maurice Otieno Odongo in equal shares but that to her surprise, when she visited the Kisumu Land’s Registry for purposes of registration of documents to enable transmission of the estate, she found that the entire parcel of land had been transmitted and registered in the name of Maurice Otieno Odongo contrary to the contents of the certificate of confirmation of grant.
4. She therefore asserts that the process of transmission was done fraudulent.
5. The respondent filed a replying affidavit sworn on November 5, 2019 admitting that he had un-procedurally transferred the land to his name to forestall further sale of the estate by his family members. He affirms his commitment to abide by the conditions that may be set by the court.
6. The respondent appeared before Ochieng J on October 28, 2019 and admitted having committed fraud in the transfer of the estate property. Subsequently the court issued orders in the following terms.The registration of Maurice Otieno Odongo as the proprietor of L.R No. Kisumu/Nyalunya/2550 is hereby revoked forthwith as it was acquired without any lawful order.
7. I find the above order to have sufficiently disposed of this application so that in the absence of a contrary finding by the court, the order stands. Consequently, the application under consideration is no doubt spent.
8. Nonetheless, for completeness of the court record and in light of the admission by the respondent that he caused the irregular registration of the subject parcel of land in his name contrary to the certificate of confirmation of grant issued by this court, an order is hereby issued that the Land Register in respect of land parcel No. Kisumu/Nyalunya/2550 be and is hereby rectified and the name Maurice Otieno Odongo be and is hereby deleted and the said title do revert and or be registered according to the Certificate of Confirmation of Grant dated April 30, 2018 issued by this court, which Certificate of Confirmation shall be served upon the Land Registrar Kisumu Lands Registry together with this ruling and order for implementation forthwith.
9. Each party to bear their own costs of the application.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 13TH DAY OF DECEMBER, 2022R.E. ABURILIJUDGE