[2010] KEHC 3410 (KLR)
The court found that the applicant failed to prove any fraud or illegality in the registration of the 1st defendant as proprietor of the land, and that the 2nd defendant, as subsequent purchaser for value, was not implicated in any fraud or shown to have knowledge of it. The applicant also lacked capacity to sue on...
Source-derived case information.
- Citation
- [2010] KEHC 3410 (KLR)
- Parties
- Plaintiff: William Omala (suing as personal representative of the Estate of Omala Yonga); Defendant: Dr. Oluoch Okeyo; Defendant: Onsango Farmers Cooperative Society Ltd
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 99 of 2008
- Procedural Posture
- Civil Case / Judgment
- Outcome
- summons dismissed
- Legal Topics
- Adjudication Disputes, Fraudulent Registration, Indefeasibility of Title, Personal Representative Capacity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Omala (suing as personal representative of the Estate of Omala Yonga)
Plaintiff
Dr. Oluoch Okeyo
Defendant
Onsango Farmers Cooperative Society Ltd
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the 1st defendant fraudulently registered himself as proprietor of the disputed land parcel.
- 2 Whether the applicant, as personal representative, had capacity to bring the suit on behalf of other alleged co-owners.
- 3 Whether the 2nd defendant holds the land in trust for the applicant or the estate of Omala Yongo.
Ratio Decidendi
The court found that the applicant failed to prove any fraud or illegality in the registration of the 1st defendant as proprietor of the land, and that the 2nd defendant, as subsequent purchaser for value, was not implicated in any fraud or shown to have knowledge of it. The applicant also lacked capacity to sue on behalf of other alleged co-owners without their authority or evidence of their demise. The machinery under the Adjudication Act provided a forum for resolving such disputes, and the applicant's delay of 23 years in bringing the suit further weakened the case. The 2nd defendant's title, being absolute and indefeasible under the Registered Land Act, could not be impeached in the...
Court Disposition
summons dismissed
Orders
- The originating summons is dismissed.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII
Civil Case 99 of 2008
WILLIAM OMALA (suing as personal representative of the Estate of)
OMALA YONGA) (DECEASED)..........................................................PLAINTIFF
-VERSUS-
DR. OLOUCH OKEYO............................................................1ST DEFENDANT
ONSANGO FARMERS COOPERATIVE SOCIETY LTD......2ND DEFENDANT
JUDGMENT
The applicant filed the originating summons being personal representative of the Estate of Omala Yongo. He states that land parcel Suna West/Wasimbete/924 was originally Suna West/Wasimbete/162 which was in the names of Omala Yango, Leonard Ochola, Ndege Omala, Abanga Omala, Aturo Omala and Onyango Nyende all of whom have been staying on it for a period of 30 years. He says that the 1st respondent fraudulently got himself registered as proprietor of the parcel without the knowledge of these people. He produced a copy of Adjudication Record which shows that indeed the above people were recorded as the land owners with shares in common, but that following objection, the 1st respondent replaced them as owner. The appellant states that by the time of the objection Omala Yongo had died in 1977 and could not have participated in the proceedings.
The 1st respondent was the first registered owner on 24/4/85 (W02) and sold it to the 2nd respondent for Ksh. 206,250/=. The 2nd respondent are now the registered owners. There is no allegation of fraud or knowledge of fraud against the 2nd respondent.
The applicant produced agreement (W06) of 1978 showing the original owners sold the land to Dr. Oluoch Okeyo and the transaction had been witnessed by the Recorder. It is alleged the deceased was dead by now and could not have participated in the transaction.
The court was not told whether Leonard Ochola ,Ndege Omala, Abanga Omala, Aturo Omala, And Onyango Nyende are alive or are dead. If they are dead, the applicant has no capacity to bring the cause on their behalf. If they are alive, he required their authority to bring the case as he has stated they are co-owners of the land. If they are alive and are silent about their alleged sale of the land to the 1st respondent in 1978 (W06) then that does not help the applicant’s case.
It would appear from the records held by the applicant that the first registered owner of the land was 1st respondent. There was dispute between him and the initial owners at the time of adjudication which was resolved in his favour. There was a machinery under theAdjudicationAct (Cap. 284)to resolve whatever grievance Omala Yongo or his family may have had with the 1st respondent. One would also wonder why, following the registration of the parcel, it took the applicant 23 years to bring this suit.
The 2nd respondent is the registered owner of the land. Under sections 27 and 28 of the Registered Land Act (Cap.300)he has absolute and indefeasible title. There would be no basis to hold that the 2nd respondent holds the title in trust for the applicant if the allegation of fraud was not made or proved against him. It is not an easy decision to take away the land of such a registered owner.
The respondents did not file any response to the suit. It was still the responsibility of the applicant to prove the case. I find he has not. I dismiss the summons.
Dated, signed and delivered at Kisii this 20th day of January, 2010.
A.O.MUCHELULE
JUDGE
20/1/2010
Before Muchelule-J
Court clerk-Bibu
Mr. Nyambati for Mr. Ondera for plaintiff
COURT: Judgment in open court.
A.O.MUCHELULE
JUDGE
20/1/2010