In re Estate of the Late Bosco Bono [2020] eKLR Case Summary

Court
High Court of Kenya at Kitale
Category
Civil
Judge(s)
H. K. Chemitei
Judgment Date
October 27, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: In re Estate of the Late Bosco Bono [2020] eKLR


1. Case Information:
- Name of the Case: Jane Kilimo v. Grace Khisa Malenya
- Case Number: Succession Cause No. 27 of 2010
- Court: High Court of Kenya at Kitale
- Date Delivered: October 27, 2020
- Category of Law: Civil
- Judge(s): H. K. Chemitei
- Country: Kenya

2. Questions Presented:
The central legal issues before the court included whether the title deed registered in the name of the respondent was obtained fraudulently, whether the court had jurisdiction to cancel the title deed, and whether the applicant was entitled to the land in question.

3. Facts of the Case:
The applicant, Jane Kilimo, filed a Notice of Motion seeking the cancellation of a title deed (TRANS NZOIA /MITO MBILI S F T /96) registered in the name of the respondent, Grace Khisa Malenya. The applicant claimed that the title was fraudulently registered, as the original proprietor, Bosco Bono Wamachichi, was still alive. The respondent countered that the court did not have jurisdiction to cancel the title and argued that matters relating to land should be addressed in the Environment and Land Court.

4. Procedural History:
The case began with the applicant's motion dated June 28, 2019, which sought various forms of relief regarding the title deed. The court previously ruled on October 3, 2018, that there was no deceased estate to litigate over. The respondent filed a replying affidavit on March 9, 2020, asserting that the matter should be referred to the Environment and Land Court. The parties submitted written arguments, and the court reviewed these submissions along with relevant legal provisions.

5. Analysis:
- Rules: The court referenced Article 165 of the Constitution of Kenya, Section 47 of the Law of Succession Act, and Rule 73 of the Probate and Administration Rules, which grant the High Court jurisdiction to entertain applications under the Succession Act.
- Case Law: The court considered previous rulings regarding jurisdiction and the validity of succession proceedings. It emphasized that the fraudulent acquisition of the title deed warranted judicial intervention despite the respondent's claims about jurisdiction.
- Application: The court concluded that since the original owner was alive, the title deed obtained by the respondent was illegal. It determined that it had the jurisdiction to rectify the register and cancel the title deed. However, it noted that the applicant did not possess a confirmed grant to claim the title directly, and thus the title should revert to the original owner, Bosco Bono Wamachichi, for further disposition.

6. Conclusion:
The court ruled in favor of the applicant by canceling the title deed registered in the respondent's name and rectifying the register to reflect the original owner. The court disallowed the eviction order, directing the parties to resolve possession issues in the appropriate land court. This ruling underscored the court's commitment to addressing fraudulent registrations while recognizing the limits of its jurisdiction regarding eviction matters.

7. Dissent:
There were no dissenting opinions noted in the ruling.

8. Summary:
The High Court of Kenya ruled to cancel a title deed fraudulently registered in the name of Grace Khisa Malenya, restoring it to the original owner, Bosco Bono Wamachichi. The decision highlighted the importance of preventing fraudulent claims to property while affirming the need for proper jurisdictional channels for eviction matters. The ruling has implications for future succession and land disputes, reinforcing the necessity for transparency and legality in property registration processes.

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