[2011] KEHC 2351 (KLR)
The court found that the transfer of L.R. NO. E. BUKUSU/S. NALONDO/2011 to the defendant was unlawful as it occurred twenty-two years after the death of the registered proprietor, George Otoa Mukanda, without any succession proceedings. The absence of a succession cause and the direct transfer to the defendant...
Source-derived case information.
- Citation
- [2011] KEHC 2351 (KLR)
- Parties
- Plaintiff: Saul Geoffrey Otoa; Plaintiff: Edwin Sudi Otoa; Defendant: Patrick Oundo Otoa
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 32 of 2009
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- Judgment for the plaintiffs.
- Judges
- FN Muchemi
- Legal Topics
- Rectification of Register, Fraudulent Transfer, Succession Without Grant, Inheritance Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Saul Geoffrey Otoa
Plaintiff
Edwin Sudi Otoa
Plaintiff
Patrick Oundo Otoa
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the registration of the defendant as sole proprietor of L.R. NO. E. BUKUSU/S. NALONDO/2011 was lawful given the death of the original owner.
- 2 Whether the plaintiffs, as children of the deceased, are entitled to a share of the suit land.
- 3 Whether the transfer of the land to the defendant constituted fraud in the absence of succession proceedings.
Ratio Decidendi
The court found that the transfer of L.R. NO. E. BUKUSU/S. NALONDO/2011 to the defendant was unlawful as it occurred twenty-two years after the death of the registered proprietor, George Otoa Mukanda, without any succession proceedings. The absence of a succession cause and the direct transfer to the defendant constituted fraud. The plaintiffs, as children of the deceased, were entitled to inherit the land through proper succession. The court held that the register should be rectified to cancel the defendant's registration and revert the title to the deceased's name to facilitate lawful succession proceedings involving all beneficiaries.
Court Disposition
Judgment for the plaintiffs.
Orders
- The Land Registrar Bungoma is directed to rectify the register for land reference NO.E. BUKUSU/S. NALONDO/2011 by canceling the name of Patrick Oundo Otoa.
- The title shall revert to the name of the deceased George Otoa Mukanda to enable the family to engage in succession proceedings.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL SUIT NO.32 OF 2009
SAUL GEOFFREY OTOA
EDWIN SUDI OTOA.................................................................................................PLAINTIFFS
VRS
PATRICK OUNDO OTOA........................................................................................DEFENDANT
JUDGMENT
The Plaintiffs Saul Geoffrey Otoa and Edwin Sudi Otoa sues Patrick Oundo Otoa for rectification of register by cancellation of his registration as proprietor of Land Reference Number
E. BUKUSU/S. NALONDO/2011. In their plaint dated 17/04. 2009 the Plaintiff avers that the parties are all brothers. Their father George Otoa Mukanda died on the 12/10/1986. He was the registered owner of Land Reference Number E.BUKUSU/S.NALONDO/236 which he sub-divided into two portions namely L.R. NOS. E.BUKUSU/S.NALONDO/2012 and 2011. L.R. No.2011 was registered in the name of one Joseph Otoa. Parcel No.2011 remained in the name of the deceased. After the death of the deceased, the land L.R.2011 was supposed to devolve to the children of the deceased. The Defendant instead registered himself as the sole proprietor. He denied the Plaintiffs their shares of beneficial ownership in the estate of their deceased father. It is the Plaintiffs prayer that the registration be rectified to include the Defendants as equal beneficiaries.
The Defendant was served with summons to enter appearance but failed to defend the suit. The Plaintiff formerly proved his suit.
The only witness Saul Geoffrey Otoa produced the ownership documents of the land in the name of his father George Otoa Mukanda the deceased. He became the registered owner of L.R. NO. E. BUKUSU/S. NALONDO/2011 on 30/03/87. The land was transferred to the Defendant Patrick Oundo Otoa on 02/05/2008. One of the Plaintiffs Geoffrey Otoa lodged a caution on the land on 26/6/2008 to protect his interest and that of the other Plaintiffs. A copy of the title deed shows that the land belonged to the deceased George Otoa Mukanda and ownership changed on 5/6/2008 to the Defendant’s name.
The Plaintiffs and the Defendant are children of deceased and were entitled to inherit the land of their father on death. The deceased died on 26/10/1986. The requirements of the law is that a succession cause ought be filed by any of his children or beneficiaries or jointly by two or three of them in order to facilitate inheritance. The copy of register shows that there was no inheritance by way of transmission on death. It is indicated in the relevant section that the land was transferred by the deceased to the Defendant on 5/6/2008. surprisingly this was twenty two (22) years after the death of the deceased. It is not possible that such a transfer would take place because the registered proprietor had passed on many years back.
In the absence of any succession proceedings involving all the survivors of the deceased, an inference can be drawn that the registration into the Defendants name was obtained by fraud. The Plaintiff has supported his case with documentary evidence which is uncontroverted. There is a handwritten will whose contents are not legible. Whatever the contents may be there is no way that the land of the deceased would be distributed without going through a succession cause to the very end.
It is my finding that the Plaintiffs have proved their case against the Defendant on the balance of probabilities. I enter judgment in favour of the Plaintiffs against the Defendant in terms of the prayers in the plaint. The Land Registrar Bungoma is hereby directed to rectify the register for land reference NO.E. BUKUSU/S. NALONDO/2011 by canceling the name of Patrick Oundo Otoa. The title reverts to the name of the deceased George Otoa Mukanda to enable the family engage in succession proceedings.
The costs of the suit to the Plaintiffs.
F. N. MUCHEMI
JUDGE
Judgment dated and delivered on the 13th day of July, 2011 in the presence of Mr. Makali for Murunga for the Plaintiff.
F. N. MUCHEMI
JUDGE