Title deed isn't enough, court rules, orders land back to dead owner

The Environment and Land Court in Voi has cancelled two separate titles for the same parcel of land after the death of the registered owner.

It directed the property be returned to his estate. 

The court ruled last Friday that both titles to the property, Taita Taveta/Kitobo 'B'/374, were issued after the original owner, Sammy Kinyanjui Mariga, died in 2017.

The dispute pitted Mwajabu Shambani, who purchased the land in 2023, against Phyllis Mwaura, who claimed to have bought it a decade earlier. 

Two parallel registers and titles were issued by the Voi County Land Registrar — one to Mwaura in May 2023 and another to Shambani in September of the same year.

Shambani sued the registrar and several others after her title deed, dated September 8, 2023, was marked for cancellation.

She claimed she had purchased the land from the deceased’s widow, Anne Mariga, for Sh800,000.

Shambani then discovered the rival claimant, Mwaura, who held a title dated May 16, 2023. 

Mwaura alleged she had bought the land from the deceased in 2013, though the transfer was formalised 10 years later. 

The conflicting claims prompted the Land Registrar to conduct proceedings that ultimately favoured Mwaura, a decision Shambani challenged in court.

Joining as an interested party, Gabriel Lenjo, who claimed to hold a power of attorney over the land as security.

Lenjo testified that he had advanced Sh350,000 to the deceased for medical expenses.

Delivering the judgment on February 12, judge Edward Wabwoto emphasised that merely holding a title deed is insufficient to prove ownership.

Highlighting the necessity of legal evidence over mere documentation, the judge ruled, "It is not enough to wave an instrument of title or rest easy on the former rock of chronological primacy."

The court found that both transfers occurred after the death of the registered proprietor, rendering them void for want of succession proceedings.

“The plaintiff acquired the land in September 2023 after the death of Sammy Mariga in 2017 and as such the second defendant had no legal capacity to transfer the same to her. The said transfer was illegal and unlawful,” the judgment read.

The court said that because Mariga had died in 2017, any dealings with his property without a completed succession process were illegal. 

The widow, the second defendant, lacked the legal capacity to sell the land to Shambani in 2023.

The court also found the Land Registrar’s proceedings, which led to the ruling favouring Mwaura, procedurally flawed. 

The registrar had conducted a hearing in November 2024 and issued a ruling that favoured Mwaura, while accusing Shambani of fraud.

Further, Lenjo, though adversely mentioned, was never summoned or heard. 

Judge Wabwoto held that non-summoning contravened Article 47 of the Constitution on fair administrative action. 

“In the circumstances, it was unfair to proceed and arrive at such a conclusion without the parties who were adversely mentioned,” he observed. 

Wabwoto ruled that the registrar cancel all fraudulent entries and restore the property to the name of the deceased, pending a lawful succession process.

“It is hereby declared that the purported transfer of the suit property Taita Taveta/Kitobo ‘B’/374 to the plaintiff and third defendant dated September 8, 2023, and May 26, 2023, together with the subsequent issuance of the title deeds in respect therefore were issued fraudulently and are illegal, null and void ab initio."