Margaret Nabucha Nakhokho v Henry Chabi Masinde [2015] KEHC 2410 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

ENVIRONMENT AND LAND CASE NO. 218 OF 2014

MARGARET NABUCHA NAKHOKHO …………………...........................…..PLAINTIFF

VERSUS

HENRY CHABI MASINDE ………………………………....................……DEFENDANT

JUDGEMENT

[1]  The plaintiff’s claim against the defendant is for an order of cancellation of titles, subdivisions and transfers curved from the original Ndivisi/Muchi/4166.  He prays that this Honourable court do order that the aforesaid land do revert into its original position.

[2] The plaintiff on his pleadings claim that this land Ndivisi/Muchi/4166 belonged to his father one Alphonce Masinde Murere who died on 8th September 1996.

[3] That the deceased was married to two wives Frida Wafubwa the first wife and Esther Nambuye the 2nd wife.  The first wife had 8 children while the second wife had  2 children.  That in his lifetime, he had given each house their own portions of land but he had not transferred it into their names and that each house was dealing with its portion as it wished.

[4] That after the death of the said Alphonce Masinde Murere, and while the family was waiting for the Succession for Letters of Administration of the estate of Mr. Murere foresaid, the defendant who was the eldest son of the deceased fraudulently transferred the said land(without a succession cause being filed) to himself.   That on realizing the same, the plaintiff and her family demanded that  the defendant do give them their respective portions but the defendant has refused to do so.  That the D.O. and the chief and the clan has summoned the plaintiff asking him to transfer the land to those entitled but the defendant has completely refused to do so.  That this has therefore rendered this suit necessary.

[5] The plaintiff produced a search certificate showing the defendant as now the registered proprietor, copies of mutation, forms showing various sub divisions of the land parcel Ndivisi/Muchi/4166, letter from the chief showing Alphonce Masinde Murere identity card No. 07593430/70 as being deceased.  She used these documents to support her case.

[6] The defendant who was served with the pleadings herein filed his defence on 17/12/2014.  In his defence  he admitted para 12 and 9 of the plaint.  He however denied any forgery and averred that he was rightfully registered as the  owner of title Ndivisi/Muchi/6680.  He contends that this suit is prematurely filed.  He basically denies any wrong doing.

[7] During the hearing of this case the defendant who was served with a hearing notice did not attend the hearing.  There is no doubt in this case that the defendant transferred land parcel Ndivisi/Muchi/4166 which land belonged to his father Alphonce Masinde Murere who was deceased without filing in court for letters to administer his late father’s estate.  The transfer of the same to his name was a fraud.  His attempt to sub divide and sell the resultant sub divisions was an exercise in futility since he had no capacity to sub divide or indeed transfer that land or the resultant parcels thereof.  The land of a deceased person cannot be transmitted to another person without the person transferring the land or any portion thereof, first obtaining letters of administration of the deceased.  Any purported sale to any other person by the defendant is also a nullity.

It is still a mystery how the land office transferred the land of a deceased person to the defendant herein, without letters of administration of the deceased estate, and without a letter  of consent from the relevant Land Control Board, when this land was in a land control area.

The end result is that the plaintiff’s suit herein succeeds with costs.  I do order that land Ndivisi/Muchi/4166 do revert to its original position in the register.

The Land Registrar Bungoma is ordered to rectify the register accordingly.

Dated at Bungoma this  30th day of  September 2015

S.MUKUNYA  -  JUDGE