The Plaintiffs Case
Mokio Kipketer Kuto and Patrick Kipkoech Keter suing as the administrators of the Estate of the late Kipketer Kuto [Deceased] (hereinafter referred to as the plaintiffs) have come to this court against Kandie Kuto and the District Land Registrar (hereinafter referred to as defendants) claiming that at all the material times the late Kipketer Kuto was and/or has been the legal and beneficial owner of all the parcel of land known as I-R.NO. LEMBUS/KABlMOl/83 (hereinafter referred to the "suit property") and the same was registered in his name on or about 7th July, 1960.
According to the plaintiffs, the Late Kipketer Kuto died on or around 3rd July, 1976 and at the time of his death was domiciled in the Republic of Kenya and his last known place of residence was Chepnes Village Lembus-Kabimoi Location, in Nakuru County. The legal right over the suit property survives the deceased and should therefore pass to the legal beneficiaries of the deceased and who are in possession and occupation of the same.
The plaintiffs state that in or about October, 2019 while initiating the process of succession, they learnt from the records in the land registry that the 1 St Defendant had fraudulently interfered with the suit property and that that on or about 9th August, 1989, the 1st defendant had by way of fraud, illegally and/or irregularly subdivided the suit property into Plot No. Lembus/Kabimoi/161 and Lembus/Kabimoi/162 then proceeded to transfer parcel Lembus/Kabimot/162 to himself. He then proceeded to further subdivide parcel Lembus/Kabimol/162 further to Lembus/Kabimol/664 and Lembus/Kabimol/665.
The particulars of fraud alleged against the defendant are transferring the suit property without following due process and without succession proceedings. Moreover, causing the suit property to be subdivided into PLOT NO. LEMBUS/KABlMOl/161 and LEMBUS/KABlMOl/162, and the further subdivisions of LEMBUS/KABlMOl/162 into LEMBUS/KABlMOl/664 and LEMBUS/KABlMOl/665 without a Grant of Letters of Administration which would make him Administrator of the late KIPKETER KUTO'S Estate Causing LEMBUS/KABlMOl/162, which is part of the Estate of the Late KIPKETER KUTO, to be registered under his name and acquiring a title deed thereto without a Grant of Letters of Administration which would make him Administrator of the late KIPKETER KUTO'S Estate. Failing to disclose to the Land Registrar that the proprietor died in 1976 and no succession proceedings had been undertaken.
The particulars of fraud, misrepresentation & illegality against the 2nd defendant are that purporting to issue a certificate of title in the name of the 1st Defendant while knowing and/or ought to have known that the said person was not the proprietor, failing to ascertain the authenticity of the transaction while knowing and/or ought to have known the documents submitted to him/her were forgeries and or improper, allowing himself/herself to be a party to a fraudulent transaction while knowing and/ought to have known that the 1st Defendant was not the rightful proprietor or owner of the suit property.
The Plaintiffs aver that the suit property has at all times belonged to the late Kipketer Kuto and that he has been in possession of the said suit property for decades and to date still remain in possession vide his beneficiaries and/or dependents.
The Plaintiffs avers that the subdivisions are unlawful and the same should be reverted back to the mother title and the Plaintiffs herein are entitled to be declared the legal owners of the suit property as the legal administrators of the Estate of the late Kipketer Kuto (Deceased).
The plaintiffs pray for a declaration that being the legal representatives of the Estate of the Late Kipketer Kuto, they are the legal owners of all the parcel of land known as PLOT NOs. LEMBUS/KABlMOl/161, LEMBUS/KABlMOl/664 and LEMBUS/ KABlMOl/665 (all emanating from the mother title known as I-R. NO. LEMBUS/ KABlMOl/83)
The plaintiffs further pray for a declaration that the subdivision of all that parcel of land known as I-R. NO. LEMBUS/KABlMOl/83 into LEMBUS/KABlMOl/161 and LEMBUS/KABlMOl/162 and subsequent transfer of LEMBUS/KABlMOl/162 to the 1 st Defendant is and/or was fraudulent and illegal, null and void ab intio.
The plaintiffs pray further for a declaration that the subdivision of land parcel known as LEMBUS/KABlMOI/162 into LEMBUS/KABlMOl/664 and LEMBUS/KABlMOl/665 and the subsequent registration in the name of the 1 st Defendant is and/or was fraudulent and illegal and order cancellation of the 1st Defendant's title deeds and an order directing the 2nd Defendant to restore the mother title in the name of the Plaintiffs in their capacity as legal representatives of the estate of Late KIPKETER KUTO, title number LR. NO. LEMBUS/KABlMOl/83.
Lastly, a the plaintiffs pray for a permanent injunction restraining the 1 St Defendant whether by himself, his servants, agents and/or anyone acting under his authority from dealing, constructing, selling, alienating, trespassing, interfering, charging and/or any other way dealing with all the parcel of land known as PLOT NOs. LEMBUS/KABlMOl/161, LEMBUS/KABlMOl/664 and LEMBUS/KABlMOl/665 (all emanating from the mother title known as I-R. NO. LEMBUS/KABlMOl/83). The plaintiffs ultimately pray for the costs of this suit and interest thereon.
The 1st Defendant’s Case.
The 1st defendant on his part filed an amended statement of defence and counter claim on 8.9.2020 denying the allegation in the plaint and contends that that the deceased died a long time ago before the Law of Succession Act Cap 160 Laws of Kenya came into force. The 1st defendant further states that the allegations of fraud raised by the plaintiffs herein imputes a serious offence which the plaintiffs ought to have reported and have the matter investigated
The 1st defendant states that the deceased person referred in the plaint exchanged with him part of the original land with his cows and the 1st defendant took occupation thereof as shall be proved in evidence.
The 1st defendant contends that the suit is time barred and raises a preliminary objections on points of law to that effect and that Patrick Kipkoech Keter lacks locus standi to prosecute this suit on behalf of Mokio Kipketer Kuto. He denies all the allegations contained in the plaint as if the same were herein set out and traversed seriatim s the beneficial equitable legal owner of LEMBUS/KABIMOI/ 162 or 20.4 HA in LR. NO. LEMBUS/KABIM01/83) having acquired it from Kipketer Kuto and exchanging his cows with the land of the deceased.
The 1st defendant has a counter claim where he states that he took possession of the land sometimes in the year 1975 and has been in occupation of the suit land since then to date. He further states that since the time he took occupation of the land the plaintiffs have never asserted any rights or claim over the suit before the expiry of 12 years and that he has been in occupation on the suit land from the year 1975 uninterrupted and now he is entitled to the suit land. His occupation on the land is actual, visible, and exclusive, open and notorious to the extent that he built his matrimonial home thereon and had his family members including children buried in the suit land since the year 1975. He has asserted title to the property for a period of over 45 years.
The 1st defendant prays for judgment, and that the suit be dismissed and the counter claim be allowed and that the 1st defendant be declared the owner of LEMBUS/KABIMOI/ 162 or 20.4 HA in LR. NO. LEMBUS/KABIM01/83 and which he occupies and to which he is entitled to by virtue of adverse possession and that the plaintiffs be ordered to transfer the said portion of land to the 1st defendant.
The 1st defendant prays that in default of the plaintiffs now the defendants transferring the same voluntarily the court do make an order authorizing the Deputy Registrar of the Court to execute all documents necessary to effect the subdivision and transfer of the portion of the aforesaid land to the 1st defendant. Ultimately, the 1st defendant prays for the costs of the counterclaim.
2ND DEFENDANTS CASE
The 2nd defendant denies the allegation in the plant and states that save for the fact that the 2nd Defendant is a government officer responsible for administering the land registry, the 2nd Defendant denies any involvement in the succession dispute and sale of Parcel LR NO. LEMBUS/KABIMO/83 herein save for the entries made in the records at its disposal and states that it can only divulge that which is within its review that being, the register.
The 2nd Defendant denies the particulars of fraud, misrepresentation and illegality as alleged and particularized in paragraph 8 of the Plaint and categorically states that it has always performed its duties as mandated by the Land Registration Act and any of its actions can be traced through the documentation found in its register which has been provided. The 2nd Defendant denies the contents of the entire Plaint and states that it has always carried out its duties diligently and served the general public as per its mandate without favoritism.
The 2 nd Defendant avers that there was no demand or notice of intention to sue issued by the Plaintiffs as required in law and in this case Section 13A of the Government Proceedings Act and shall hence maintain that the Plaintiff be denied costs in the matter if any at all is due. He prays that the suit be dismissed.
Evidence on Record
When the matter came up for hearing, PW1, Patrick Kipkoech Keter, a resident of Nakuru County within the Republic of Kenya stated that he is a co-administrator of the estate of the late Kipketer Kuto together with his grandmother Mokio Kipketer Kuto He produced a copy of the grant of letters of administration ad litem. His late grandfather Kipketer Kuto died on or about 3rd July, 1976. He produced a copy of the Certificate of Death. Prior to his death, he was the legal and beneficial owner of all the parcel of land known as I-R. NO. LEMBUS/KABlMOl/83 and the same was registered under his name on or about 7th July, 1960.
That unknown to the plaintiffs on or about 8th August, 1989, the suit property was subdivided by one Kandie Kuto to LEMBUS/KABlMOl/161 and LEMBUS/KABlMOl/162without a grant of letters of administration and therefore he did not have capacity to interfere with the estate of his late grandfather.
That on or about the aforementioned date, the said Kandie Kuto proceeded to transfer and register in his name the parcel of land known as Lembus/Kabimoi/162 without legal authority to do so. He produced a copy of the green card for parcel Lembus/Kabimol/162)
The plaintiff laments that there have been entries made on the Green Card for parcel LEMBUS/KABlMOl/162from 1990 to 2019 but the Estate of the late Kipketer Kuto is not privy to them That subsequently on or about 4th September, 2019 the said Kandie Kuto proceeded to further subdivide the parcel LEMBUS/KABlMOl/162 LEMBUS/KABlMOl/664 and LEMBUS/KABlMOl/665. The said entry is no, 7 in the said green card.
They only came to learn of the unlawful and fraudulent deeds of the said Kandie Kuto on or about October 2019 as the family sought to initiate the process of the succession of his late grandfather's estate
That on or about the 10tr September, 2019, subsequent to this discovery, he proceeded to register a caution on the green cards for parcel Lembus/Kabimoi/664 and Lembus/Kabimoi/665 in his capacity as administrator and beneficiary of the late grandfather's estate.
That subsequently he was advised to institute a suit to void the unlawful, irregular and fraudulent deeds of the said Kandie Kuto hence precipitating this suit. That his late grandfather Kipketer Kuto was the rightful and legal owner of the suit property and that the title deeds in possession of the 1st Defendant one, KANDIE KUTO can only have been registered by fraud and should therefore be cancelled
.
PW2 Josephine Cherotich Tanui, a daughter of the late Kipketer Kuto, and the 3 rd born in the family, having been born in 1961 at Land parcel KABlMOl/LEMBUS/83. States that it is not true that his father ever sold land in 1975 or any other date as alleged by the Defendant. Her family has been living on the property since she was born and she only left her ancestral home when she got married in 1986. Therefore, it is not plausible that their family land was ever sold to the defendant who has never stepped in it or ever utilized even an inch of it.
PW3, Mokio Kipketer, 85 years old appeared to suffer memory loss and could not remember that she signed a witness statement. According to pw3, The Property belonged to her family. Her husband never sold the property.
The defence called the 1st defendant, Kandie Kuto, a resident of Eldama Ravine in Baringo County within the Republic of Kenya who stated that the beneficial/equitable/legal owner for LEMBUS/KABIM01/162 or 20.4 HA in LR. NO. LEMBUS/KABIM01/83 (hereinafter referred to as the suit land) having acquired it from Kipketer Kuto(DECEASED) by exchanging his cows with the deceased. He took possession of the land sometime in the year 1975 and I have been in occupation of the suit land since then to date. Since the time he took occupation of the land, the plaintiffs have never asserted any rights or claim over the suit before the expiry of 12 years. His occupation on the suit land from the year 1975 was/is exclusive, open, peaceful, continuous and uninterrupted for a period exceeding 12 years and I am now entitled to the suit land in adverse possession and has been actual, visible, exclusive, open and notorious to the extent that he built his matrimonial homes thereon and had his family members including grandchildren buried in the suit land and has been cultivating the suit land since the year 1975. He has asserted hostile title to the plaintiffs who are now claiming for the suit land herein after a period of over 45 years.
Plaintiffs Submissions
The gravamen of the plaintiff’s submissions is that at the time the 1 st defendant purported to subdivide the property on 8 th August 1989 letters of administration had not been taken out in respect of the deceased's estate therefore nobody had the right to dispose of or interfere with the said property whatsoever the deceased having died on 3 rd July 1976 as per the death certificate. That although the 1st defendant's claim was that he had bought the land the deceased remained the registered owner of the suit land and therefore no one had capacity to subdivide and transfer the property without letters of administrations and proper transmission instruments duly executed by administrators. The subdivision and transfer 3aving been effected without letters of administration and transmission instruments, the entire transfer process was thus null and void ab initio.
The mutations forms were executed and registered 13 years after the death of the registered owner. Secondly that the no consent was obtained from the Land Control Board to subdivide and transfer the said land as per the requirement of Section 6(1) (a) of the Land Control Act. The consent relied upon by the 1st defendant dated 21 st December 1982 is between the 1st defendant and one Nehemiah Chepsom not the deceased .
The application presented by the defendant is dated 15 th November 1982 is in respect of whether LEMBUS/ KABlMOl/162 registered long after the demise of KIPKETER KUTO and does confirm or show the participation of the deceased or the legal administrators of his estate. The plaintiff further submits that from the evidence adduced by the plaintiff and failure by the Land Registrar to give evidence, none of the procedures required for the transmission of the deceased's land was adhered to by the Defendants in the present instance, before he could obtain title to the suit land. That there were no letters of Administration, no transmission documents were prepared executed, attested and presented to the Land Registrar for registration.
As to the issue of whether the subdivisions transfer and registration of subsequent titles arising from I-R LEMBUS/KABlMOl/83 effected on the Registers of on the 8th August 1989 and 4th September 2019 the plaintiff submits that it was illegal, null and void and should be cancelled, since the instruments of transmission which were mandatory for any estate property to be transferred, were not prepared and executed, attested or even lodged for registration and neither was there any stamp duty for transfer paid It is the Plaintiff's case that based on the above irregularities, the court has a duty to rectify the situation by the cancellation of the title which was a product of an illegality so that the property could be restituted to the rightful owner, the estate of Kipketer Kuto. The plaintiff cites Section 45 of the Law of Succession Act that provides as follows:-
(1) Except so far as expressly authorized by this Act, or by any other written law, LU or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person, (2) Any person who contravenes the provisions of this section shall—
(a) be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and
(b) be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration,
Section 55 of the Law of Succession Act stipulates that:-
"No grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets constituting a net estate, or to make any division of property unless and until the grant has been confirmed as provided by section 71. "
The plaintiff further cites the case of Zacharia Wambugu Gathimu & another v John Ndungu Maina [2019] eKLR Justice M.C Ohundo while referring to the case of Bahola Mkalindi vs. Michael Seth Kseme & 2 others [2012] eKLR the court held that;
'The Law of Succession Act, Cap. 160 is concerned with the administration of the estate of deceased persons. The estate of a deceased person has been defined by the Act as property which the deceased person was legally competent to freely dispose of during his lifetime, and in respect of which his interest has not been terminated by his death.
The provisions of Section 26 of the Land Registration Act, Act No,3 of 2012 provide as follows:
The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
(a) on the ground of fraud or misrepresentation to which the person is proved z to be a party; or
(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.
The import of Section 26 of the Land Registration Act was considered in the case Elijah Makeri Nyangwra vs- Stephen Mungai Njuguna & Another [20131 eKLR where Munyao J, answered the question as to whether title is impeachable under section(1) (b) of the said Act as follows,
First, it needs to be appreciated that for Section 26 (1) (b) to be operative, it is not necessary that the title holder be a party to the vitiating factors noted therein which are that the title was obtained illegally, unproceduarally or through a corrupt scheme. The heavy import of section 26 (1) (b) is to remove protection from an innocent purchaser or innocent title holder. It z means that the title of an innocent person is impeachable so long as that title was obtained illegally, unprocedurally or through a corrupt scheme. The title
-a holder need not have contributed to these vitiating factors, The purpose of section 26 (1) (b) in my view is to protect the real title holders from being deprived of their titles by subsequent transactions. "
Faced with similar case as this one, the honourable court in BUSIA(Hon A.OMOLLO J)
In Siriekesi Morris Wanjala v Bonface Bruno Wanjala [20211 eKLR held as follows "The defendant instead stated that everything was done Lawrence since he was working in Nairobi. He is waving the title deed shouting the land is mine without laving a basis for how he acquired it yet the case has been brought to challenge that title. The law has changed to require a party to do much more than lust dana/inq the title as provided in section 26 of the Land Registration Act thus;
t' 1. The certificate of title issued by the Registrar upon registration, or to a purchase of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances easements restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
(a) on the ground of fraud or misrepresentation to which the person is proved to be partly; or
(b) Where the certificate of title has been acquired illegally, unprocedurallv or through a corrupt scheme.
2. A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original".
e Having found above that there is no evidence supporting how the defendant's Pavement that he procedurally and legally acquired his title, my answer to the third posed is positive that his title no 3450 should be cancelled and the land *reverts to the original number Bukhavo/Matavos/430 in the joint names of Blasio and Lawrence Wanzala-deceased. "
Analysis and determination
The plaintiffs have established that they are the administritrix and administrator respectively of the estate of the late Kipketer Kuto as they produced copy of the grant of letters of administration ad litem. They proved that the late Kipketer Kuto died on or about 3rd July, 1976. They further produced a copy of the Certificate of Death. Prior to his death, he was the legal and beneficial owner of all the parcel of land known as I-R. NO. LEMBUS/KABlMOl/83 and the same was registered under his name on or about 7th July, 1960. The plaintiffs proved that on or about 8th August, 1989, the suit property was subdivided by one Kandie Kuto to create LEMBUS/KABlMOl/161 and LEMBUS/KABlMOl/162without a grant of letters of administration. It is crystal clear that the 1st defendant he did not have capacity to interfere with the estate of the late Kipketer Kuto as he was not the legal representative or the administrator of the estate of Kipketer Kuto..
The transfer and registration of the property in the name of Kandie Kuto was without legal authority without a grant of the letters of administration intestate and confirmation of the same. This court finds that the subsequent sub-division on or about 4th September, 2019 by the 1st defendant was an act of illegality. Kipketer Kuto was the rightful and legal owner of the suit property and that the title deeds in possession of the 1st Defendant one, Kandie Kuto were registered by fraud.
Section 45 of the Law of Succession Act that provides as follows:-
(1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person, (2) Any person who contravenes the provisions of this section shall—
(a) be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and
(b) be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration,
Section 55 of the Law of Succession Act stipulates that:-
"No grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets constituting a net estate, or to make any division of property unless and until the grant has been confirmed as provided by section 71. "
The 1st defendant was an intermeddler with the properties of the late Kipketer Kuto within the meaning of the Law of succession Act Cap 160 Laws of Kenya.
The 1st defendant claim that he exchanged the late Kipketers Kutos land with cows was not proved as required by law. There is no proof of either written or oral agreement between the 1st defendant and Kipketer Kuto. There is no consent of the land control Board as required by the law. Section 6 of the land Control Act provides ---.
This court finds that the plaintiff has proved his case on a balance of probabilities and does grant a declaration that being the legal representatives of the Estate of the Late Kipketer Kuto, they are the legal owners of all the parcel of land known as PLOT NOs. LEMBUS/KABlMOl/161, LEMBUS/KABlMOl/664 and LEMBUS/ KABlMOl/665 (all emanating from the mother title known as I-R. NO. LEMBUS/ KABlMOl/83)
Further, I do grant a declaration that the subdivision of all that parcel of land known as I-R. NO. LEMBUS/KABlMOl/83 into LEMBUS/KABlMOl/161 and LEMBUS/KABlMOl/162 and subsequent transfer of LEMBUS/KABlMOl/162 to the 1 st Defendant is and/or was fraudulent and illegal, null and void ab intio.
Moreover, I do grant a declaration that the subdivision of land parcel known as LEMBUS/KABlMOI/162 into LEMBUS/KABlMOl/664 and LEMBUS/KABlMOl/665 and the subsequent registration in the name of the 1 st Defendant is and/or was fraudulent and illegal. Lastly, I do grant an order cancellation of the 1st Defendant's title deeds and an order directing the 2nd Defendant to restore the mother title in the name of the Plaintiffs in their capacity as legal representatives of the estate of Late Kipketer Kuto, title number LR. NO. LEMBUS/KABlMOl/83.
Ultimately, I do grant a permanent injunction restraining the 1 St Defendant whether by himself, his servants, agents and/or anyone acting under his authority from dealing, constructing, selling, alienating, trespassing, interfering, charging and/or any other way dealing with all the parcel of land known as PLOT NOs. LEMBUS/KABlMOl/161, LEMBUS/KABlMOl/664 and LEMBUS/KABlMOl/665 (all emanating from the mother title known as I-R. NO. LEMBUS/KABlMOl/83). The costs of this suit and interest thereon are granted to the plaintiff.
In the counterclaim, the 1st defendant claims adverse possession. This doctrine in Kenya is embodied in Section 7 of the Limitation of Actions Act, which is in these terms:-An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”
The Limitation of Actions Act makes further provision for adverse possession at Section 13 that:(1)A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under sections 9, 10, 11 and 12 a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land.(2)Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action is no longer taken to have accrued, and afresh right of action does not accrue unless and until some person again takes adverse possession of the land.(3)For the purposes of this section, receipt of rent under a lease by a person wrongfully claiming, in accordance with section 12(3), the land in reversion is taken to be adverse possession of the land.”
Sections 37 and 38 of the Limitation of Actions Act stipulate that if the land is registered under one of the registration acts then the title is not extinguished, but held in trust for the person in adverse possession until he shall have obtained and registered a High Court Order vesting the land in him.
Section 37 provides that:-(1)Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37, to land or easement or land comprised in a lease registered under any of those Acts, may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.”
In this case, the claim for adverse possession cannot succeed because the land LR .NO. LEMBUS/KABlMOl/83 does not exist after its subdivision and creation of new parcels and land LR NO 162 is illegally registered in the names of the 1st defendant and not the plaintiff and therefore the 1stdefendant cannot plead adverse possession in respect of the land registered in his name. In law one cannot claim adverse possession in a parcel of land that does not exist or is registered in his name. The counter claim has no basis and is dismissed with costs.
Mokio Kipketer Kuto and Patrick Kipkoech Keter suing as the administrators of the Estate of the late Kipketer Kuto [Deceased] (hereinafter referred to as the plaintiffs) have come to this court against Kandie Kuto and the District Land Registrar (hereinafter referred to as defendants) claiming that at all the material times the late Kipketer Kuto was and/or has been the legal and beneficial owner of all the parcel of land known as I-R.NO. LEMBUS/KABlMOl/83 (hereinafter referred to the "suit property") and the same was registered in his name on or about 7th July, 1960.
According to the plaintiffs, the Late Kipketer Kuto died on or around 3rd July, 1976 and at the time of his death was domiciled in the Republic of Kenya and his last known place of residence was Chepnes Village Lembus-Kabimoi Location, in Nakuru County. The legal right over the suit property survives the deceased and should therefore pass to the legal beneficiaries of the deceased and who are in possession and occupation of the same.
The plaintiffs state that in or about October, 2019 while initiating the process of succession, they learnt from the records in the land registry that the 1 St Defendant had fraudulently interfered with the suit property and that that on or about 9th August, 1989, the 1st defendant had by way of fraud, illegally and/or irregularly subdivided the suit property into Plot No. Lembus/Kabimoi/161 and Lembus/Kabimoi/162 then proceeded to transfer parcel Lembus/Kabimot/162 to himself. He then proceeded to further subdivide parcel Lembus/Kabimol/162 further to Lembus/Kabimol/664 and Lembus/Kabimol/665.
The particulars of fraud alleged against the defendant are transferring the suit property without following due process and without succession proceedings. Moreover, causing the suit property to be subdivided into PLOT NO. LEMBUS/KABlMOl/161 and LEMBUS/KABlMOl/162, and the further subdivisions of LEMBUS/KABlMOl/162 into LEMBUS/KABlMOl/664 and LEMBUS/KABlMOl/665 without a Grant of Letters of Administration which would make him Administrator of the late KIPKETER KUTO'S Estate Causing LEMBUS/KABlMOl/162, which is part of the Estate of the Late KIPKETER KUTO, to be registered under his name and acquiring a title deed thereto without a Grant of Letters of Administration which would make him Administrator of the late KIPKETER KUTO'S Estate. Failing to disclose to the Land Registrar that the proprietor died in 1976 and no succession proceedings had been undertaken.
The particulars of fraud, misrepresentation & illegality against the 2nd defendant are that purporting to issue a certificate of title in the name of the 1st Defendant while knowing and/or ought to have known that the said person was not the proprietor, failing to ascertain the authenticity of the transaction while knowing and/or ought to have known the documents submitted to him/her were forgeries and or improper, allowing himself/herself to be a party to a fraudulent transaction while knowing and/ought to have known that the 1st Defendant was not the rightful proprietor or owner of the suit property.
The Plaintiffs aver that the suit property has at all times belonged to the late Kipketer Kuto and that he has been in possession of the said suit property for decades and to date still remain in possession vide his beneficiaries and/or dependents.
The Plaintiffs avers that the subdivisions are unlawful and the same should be reverted back to the mother title and the Plaintiffs herein are entitled to be declared the legal owners of the suit property as the legal administrators of the Estate of the late Kipketer Kuto (Deceased).
The plaintiffs pray for a declaration that being the legal representatives of the Estate of the Late Kipketer Kuto, they are the legal owners of all the parcel of land known as PLOT NOs. LEMBUS/KABlMOl/161, LEMBUS/KABlMOl/664 and LEMBUS/ KABlMOl/665 (all emanating from the mother title known as I-R. NO. LEMBUS/ KABlMOl/83)
The plaintiffs further pray for a declaration that the subdivision of all that parcel of land known as I-R. NO. LEMBUS/KABlMOl/83 into LEMBUS/KABlMOl/161 and LEMBUS/KABlMOl/162 and subsequent transfer of LEMBUS/KABlMOl/162 to the 1 st Defendant is and/or was fraudulent and illegal, null and void ab intio.
The plaintiffs pray further for a declaration that the subdivision of land parcel known as LEMBUS/KABlMOI/162 into LEMBUS/KABlMOl/664 and LEMBUS/KABlMOl/665 and the subsequent registration in the name of the 1 st Defendant is and/or was fraudulent and illegal and order cancellation of the 1st Defendant's title deeds and an order directing the 2nd Defendant to restore the mother title in the name of the Plaintiffs in their capacity as legal representatives of the estate of Late KIPKETER KUTO, title number LR. NO. LEMBUS/KABlMOl/83.
Lastly, a the plaintiffs pray for a permanent injunction restraining the 1 St Defendant whether by himself, his servants, agents and/or anyone acting under his authority from dealing, constructing, selling, alienating, trespassing, interfering, charging and/or any other way dealing with all the parcel of land known as PLOT NOs. LEMBUS/KABlMOl/161, LEMBUS/KABlMOl/664 and LEMBUS/KABlMOl/665 (all emanating from the mother title known as I-R. NO. LEMBUS/KABlMOl/83). The plaintiffs ultimately pray for the costs of this suit and interest thereon.
The 1st Defendant’s Case.
The 1st defendant on his part filed an amended statement of defence and counter claim on 8.9.2020 denying the allegation in the plaint and contends that that the deceased died a long time ago before the Law of Succession Act Cap 160 Laws of Kenya came into force. The 1st defendant further states that the allegations of fraud raised by the plaintiffs herein imputes a serious offence which the plaintiffs ought to have reported and have the matter investigated
The 1st defendant states that the deceased person referred in the plaint exchanged with him part of the original land with his cows and the 1st defendant took occupation thereof as shall be proved in evidence.
The 1st defendant contends that the suit is time barred and raises a preliminary objections on points of law to that effect and that Patrick Kipkoech Keter lacks locus standi to prosecute this suit on behalf of Mokio Kipketer Kuto. He denies all the allegations contained in the plaint as if the same were herein set out and traversed seriatim s the beneficial equitable legal owner of LEMBUS/KABIMOI/ 162 or 20.4 HA in LR. NO. LEMBUS/KABIM01/83) having acquired it from Kipketer Kuto and exchanging his cows with the land of the deceased.
The 1st defendant has a counter claim where he states that he took possession of the land sometimes in the year 1975 and has been in occupation of the suit land since then to date. He further states that since the time he took occupation of the land the plaintiffs have never asserted any rights or claim over the suit before the expiry of 12 years and that he has been in occupation on the suit land from the year 1975 uninterrupted and now he is entitled to the suit land. His occupation on the land is actual, visible, and exclusive, open and notorious to the extent that he built his matrimonial home thereon and had his family members including children buried in the suit land since the year 1975. He has asserted title to the property for a period of over 45 years.
The 1st defendant prays for judgment, and that the suit be dismissed and the counter claim be allowed and that the 1st defendant be declared the owner of LEMBUS/KABIMOI/ 162 or 20.4 HA in LR. NO. LEMBUS/KABIM01/83 and which he occupies and to which he is entitled to by virtue of adverse possession and that the plaintiffs be ordered to transfer the said portion of land to the 1st defendant.
The 1st defendant prays that in default of the plaintiffs now the defendants transferring the same voluntarily the court do make an order authorizing the Deputy Registrar of the Court to execute all documents necessary to effect the subdivision and transfer of the portion of the aforesaid land to the 1st defendant. Ultimately, the 1st defendant prays for the costs of the counterclaim.
2ND DEFENDANTS CASE
The 2nd defendant denies the allegation in the plant and states that save for the fact that the 2nd Defendant is a government officer responsible for administering the land registry, the 2nd Defendant denies any involvement in the succession dispute and sale of Parcel LR NO. LEMBUS/KABIMO/83 herein save for the entries made in the records at its disposal and states that it can only divulge that which is within its review that being, the register.
The 2nd Defendant denies the particulars of fraud, misrepresentation and illegality as alleged and particularized in paragraph 8 of the Plaint and categorically states that it has always performed its duties as mandated by the Land Registration Act and any of its actions can be traced through the documentation found in its register which has been provided. The 2nd Defendant denies the contents of the entire Plaint and states that it has always carried out its duties diligently and served the general public as per its mandate without favoritism.
The 2 nd Defendant avers that there was no demand or notice of intention to sue issued by the Plaintiffs as required in law and in this case Section 13A of the Government Proceedings Act and shall hence maintain that the Plaintiff be denied costs in the matter if any at all is due. He prays that the suit be dismissed.
Evidence on Record
When the matter came up for hearing, PW1, Patrick Kipkoech Keter, a resident of Nakuru County within the Republic of Kenya stated that he is a co-administrator of the estate of the late Kipketer Kuto together with his grandmother Mokio Kipketer Kuto He produced a copy of the grant of letters of administration ad litem. His late grandfather Kipketer Kuto died on or about 3rd July, 1976. He produced a copy of the Certificate of Death. Prior to his death, he was the legal and beneficial owner of all the parcel of land known as I-R. NO. LEMBUS/KABlMOl/83 and the same was registered under his name on or about 7th July, 1960.
That unknown to the plaintiffs on or about 8th August, 1989, the suit property was subdivided by one Kandie Kuto to LEMBUS/KABlMOl/161 and LEMBUS/KABlMOl/162without a grant of letters of administration and therefore he did not have capacity to interfere with the estate of his late grandfather.
That on or about the aforementioned date, the said Kandie Kuto proceeded to transfer and register in his name the parcel of land known as Lembus/Kabimoi/162 without legal authority to do so. He produced a copy of the green card for parcel Lembus/Kabimol/162)
The plaintiff laments that there have been entries made on the Green Card for parcel LEMBUS/KABlMOl/162from 1990 to 2019 but the Estate of the late Kipketer Kuto is not privy to them That subsequently on or about 4th September, 2019 the said Kandie Kuto proceeded to further subdivide the parcel LEMBUS/KABlMOl/162 LEMBUS/KABlMOl/664 and LEMBUS/KABlMOl/665. The said entry is no, 7 in the said green card.
They only came to learn of the unlawful and fraudulent deeds of the said Kandie Kuto on or about October 2019 as the family sought to initiate the process of the succession of his late grandfather's estate
That on or about the 10tr September, 2019, subsequent to this discovery, he proceeded to register a caution on the green cards for parcel Lembus/Kabimoi/664 and Lembus/Kabimoi/665 in his capacity as administrator and beneficiary of the late grandfather's estate.
That subsequently he was advised to institute a suit to void the unlawful, irregular and fraudulent deeds of the said Kandie Kuto hence precipitating this suit. That his late grandfather Kipketer Kuto was the rightful and legal owner of the suit property and that the title deeds in possession of the 1st Defendant one, KANDIE KUTO can only have been registered by fraud and should therefore be cancelled
.
PW2 Josephine Cherotich Tanui, a daughter of the late Kipketer Kuto, and the 3 rd born in the family, having been born in 1961 at Land parcel KABlMOl/LEMBUS/83. States that it is not true that his father ever sold land in 1975 or any other date as alleged by the Defendant. Her family has been living on the property since she was born and she only left her ancestral home when she got married in 1986. Therefore, it is not plausible that their family land was ever sold to the defendant who has never stepped in it or ever utilized even an inch of it.
PW3, Mokio Kipketer, 85 years old appeared to suffer memory loss and could not remember that she signed a witness statement. According to pw3, The Property belonged to her family. Her husband never sold the property.
The defence called the 1st defendant, Kandie Kuto, a resident of Eldama Ravine in Baringo County within the Republic of Kenya who stated that the beneficial/equitable/legal owner for LEMBUS/KABIM01/162 or 20.4 HA in LR. NO. LEMBUS/KABIM01/83 (hereinafter referred to as the suit land) having acquired it from Kipketer Kuto(DECEASED) by exchanging his cows with the deceased. He took possession of the land sometime in the year 1975 and I have been in occupation of the suit land since then to date. Since the time he took occupation of the land, the plaintiffs have never asserted any rights or claim over the suit before the expiry of 12 years. His occupation on the suit land from the year 1975 was/is exclusive, open, peaceful, continuous and uninterrupted for a period exceeding 12 years and I am now entitled to the suit land in adverse possession and has been actual, visible, exclusive, open and notorious to the extent that he built his matrimonial homes thereon and had his family members including grandchildren buried in the suit land and has been cultivating the suit land since the year 1975. He has asserted hostile title to the plaintiffs who are now claiming for the suit land herein after a period of over 45 years.
Plaintiffs Submissions
The gravamen of the plaintiff’s submissions is that at the time the 1 st defendant purported to subdivide the property on 8 th August 1989 letters of administration had not been taken out in respect of the deceased's estate therefore nobody had the right to dispose of or interfere with the said property whatsoever the deceased having died on 3 rd July 1976 as per the death certificate. That although the 1st defendant's claim was that he had bought the land the deceased remained the registered owner of the suit land and therefore no one had capacity to subdivide and transfer the property without letters of administrations and proper transmission instruments duly executed by administrators. The subdivision and transfer 3aving been effected without letters of administration and transmission instruments, the entire transfer process was thus null and void ab initio.
The mutations forms were executed and registered 13 years after the death of the registered owner. Secondly that the no consent was obtained from the Land Control Board to subdivide and transfer the said land as per the requirement of Section 6(1) (a) of the Land Control Act. The consent relied upon by the 1st defendant dated 21 st December 1982 is between the 1st defendant and one Nehemiah Chepsom not the deceased .
The application presented by the defendant is dated 15 th November 1982 is in respect of whether LEMBUS/ KABlMOl/162 registered long after the demise of KIPKETER KUTO and does confirm or show the participation of the deceased or the legal administrators of his estate. The plaintiff further submits that from the evidence adduced by the plaintiff and failure by the Land Registrar to give evidence, none of the procedures required for the transmission of the deceased's land was adhered to by the Defendants in the present instance, before he could obtain title to the suit land. That there were no letters of Administration, no transmission documents were prepared executed, attested and presented to the Land Registrar for registration.
As to the issue of whether the subdivisions transfer and registration of subsequent titles arising from I-R LEMBUS/KABlMOl/83 effected on the Registers of on the 8th August 1989 and 4th September 2019 the plaintiff submits that it was illegal, null and void and should be cancelled, since the instruments of transmission which were mandatory for any estate property to be transferred, were not prepared and executed, attested or even lodged for registration and neither was there any stamp duty for transfer paid It is the Plaintiff's case that based on the above irregularities, the court has a duty to rectify the situation by the cancellation of the title which was a product of an illegality so that the property could be restituted to the rightful owner, the estate of Kipketer Kuto. The plaintiff cites Section 45 of the Law of Succession Act that provides as follows:-
(1) Except so far as expressly authorized by this Act, or by any other written law, LU or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person, (2) Any person who contravenes the provisions of this section shall—
(a) be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and
(b) be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration,
Section 55 of the Law of Succession Act stipulates that:-
"No grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets constituting a net estate, or to make any division of property unless and until the grant has been confirmed as provided by section 71. "
The plaintiff further cites the case of Zacharia Wambugu Gathimu & another v John Ndungu Maina [2019] eKLR Justice M.C Ohundo while referring to the case of Bahola Mkalindi vs. Michael Seth Kseme & 2 others [2012] eKLR the court held that;
'The Law of Succession Act, Cap. 160 is concerned with the administration of the estate of deceased persons. The estate of a deceased person has been defined by the Act as property which the deceased person was legally competent to freely dispose of during his lifetime, and in respect of which his interest has not been terminated by his death.
The provisions of Section 26 of the Land Registration Act, Act No,3 of 2012 provide as follows:
The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
(a) on the ground of fraud or misrepresentation to which the person is proved z to be a party; or
(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.
The import of Section 26 of the Land Registration Act was considered in the case Elijah Makeri Nyangwra vs- Stephen Mungai Njuguna & Another [20131 eKLR where Munyao J, answered the question as to whether title is impeachable under section(1) (b) of the said Act as follows,
First, it needs to be appreciated that for Section 26 (1) (b) to be operative, it is not necessary that the title holder be a party to the vitiating factors noted therein which are that the title was obtained illegally, unproceduarally or through a corrupt scheme. The heavy import of section 26 (1) (b) is to remove protection from an innocent purchaser or innocent title holder. It z means that the title of an innocent person is impeachable so long as that title was obtained illegally, unprocedurally or through a corrupt scheme. The title
-a holder need not have contributed to these vitiating factors, The purpose of section 26 (1) (b) in my view is to protect the real title holders from being deprived of their titles by subsequent transactions. "
Faced with similar case as this one, the honourable court in BUSIA(Hon A.OMOLLO J)
In Siriekesi Morris Wanjala v Bonface Bruno Wanjala [20211 eKLR held as follows "The defendant instead stated that everything was done Lawrence since he was working in Nairobi. He is waving the title deed shouting the land is mine without laving a basis for how he acquired it yet the case has been brought to challenge that title. The law has changed to require a party to do much more than lust dana/inq the title as provided in section 26 of the Land Registration Act thus;
t' 1. The certificate of title issued by the Registrar upon registration, or to a purchase of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances easements restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
(a) on the ground of fraud or misrepresentation to which the person is proved to be partly; or
(b) Where the certificate of title has been acquired illegally, unprocedurallv or through a corrupt scheme.
2. A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original".
e Having found above that there is no evidence supporting how the defendant's Pavement that he procedurally and legally acquired his title, my answer to the third posed is positive that his title no 3450 should be cancelled and the land *reverts to the original number Bukhavo/Matavos/430 in the joint names of Blasio and Lawrence Wanzala-deceased. "
Analysis and determination
The plaintiffs have established that they are the administritrix and administrator respectively of the estate of the late Kipketer Kuto as they produced copy of the grant of letters of administration ad litem. They proved that the late Kipketer Kuto died on or about 3rd July, 1976. They further produced a copy of the Certificate of Death. Prior to his death, he was the legal and beneficial owner of all the parcel of land known as I-R. NO. LEMBUS/KABlMOl/83 and the same was registered under his name on or about 7th July, 1960. The plaintiffs proved that on or about 8th August, 1989, the suit property was subdivided by one Kandie Kuto to create LEMBUS/KABlMOl/161 and LEMBUS/KABlMOl/162without a grant of letters of administration. It is crystal clear that the 1st defendant he did not have capacity to interfere with the estate of the late Kipketer Kuto as he was not the legal representative or the administrator of the estate of Kipketer Kuto..
The transfer and registration of the property in the name of Kandie Kuto was without legal authority without a grant of the letters of administration intestate and confirmation of the same. This court finds that the subsequent sub-division on or about 4th September, 2019 by the 1st defendant was an act of illegality. Kipketer Kuto was the rightful and legal owner of the suit property and that the title deeds in possession of the 1st Defendant one, Kandie Kuto were registered by fraud.
Section 45 of the Law of Succession Act that provides as follows:-
(1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person, (2) Any person who contravenes the provisions of this section shall—
(a) be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and
(b) be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration,
Section 55 of the Law of Succession Act stipulates that:-
"No grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets constituting a net estate, or to make any division of property unless and until the grant has been confirmed as provided by section 71. "
The 1st defendant was an intermeddler with the properties of the late Kipketer Kuto within the meaning of the Law of succession Act Cap 160 Laws of Kenya.
The 1st defendant claim that he exchanged the late Kipketers Kutos land with cows was not proved as required by law. There is no proof of either written or oral agreement between the 1st defendant and Kipketer Kuto. There is no consent of the land control Board as required by the law. Section 6 of the land Control Act provides ---.
This court finds that the plaintiff has proved his case on a balance of probabilities and does grant a declaration that being the legal representatives of the Estate of the Late Kipketer Kuto, they are the legal owners of all the parcel of land known as PLOT NOs. LEMBUS/KABlMOl/161, LEMBUS/KABlMOl/664 and LEMBUS/ KABlMOl/665 (all emanating from the mother title known as I-R. NO. LEMBUS/ KABlMOl/83)
Further, I do grant a declaration that the subdivision of all that parcel of land known as I-R. NO. LEMBUS/KABlMOl/83 into LEMBUS/KABlMOl/161 and LEMBUS/KABlMOl/162 and subsequent transfer of LEMBUS/KABlMOl/162 to the 1 st Defendant is and/or was fraudulent and illegal, null and void ab intio.
Moreover, I do grant a declaration that the subdivision of land parcel known as LEMBUS/KABlMOI/162 into LEMBUS/KABlMOl/664 and LEMBUS/KABlMOl/665 and the subsequent registration in the name of the 1 st Defendant is and/or was fraudulent and illegal. Lastly, I do grant an order cancellation of the 1st Defendant's title deeds and an order directing the 2nd Defendant to restore the mother title in the name of the Plaintiffs in their capacity as legal representatives of the estate of Late Kipketer Kuto, title number LR. NO. LEMBUS/KABlMOl/83.
Ultimately, I do grant a permanent injunction restraining the 1 St Defendant whether by himself, his servants, agents and/or anyone acting under his authority from dealing, constructing, selling, alienating, trespassing, interfering, charging and/or any other way dealing with all the parcel of land known as PLOT NOs. LEMBUS/KABlMOl/161, LEMBUS/KABlMOl/664 and LEMBUS/KABlMOl/665 (all emanating from the mother title known as I-R. NO. LEMBUS/KABlMOl/83). The costs of this suit and interest thereon are granted to the plaintiff.
In the counterclaim, the 1st defendant claims adverse possession. This doctrine in Kenya is embodied in Section 7 of the Limitation of Actions Act, which is in these terms:-An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”
The Limitation of Actions Act makes further provision for adverse possession at Section 13 that:(1)A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under sections 9, 10, 11 and 12 a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land.(2)Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action is no longer taken to have accrued, and afresh right of action does not accrue unless and until some person again takes adverse possession of the land.(3)For the purposes of this section, receipt of rent under a lease by a person wrongfully claiming, in accordance with section 12(3), the land in reversion is taken to be adverse possession of the land.”
Sections 37 and 38 of the Limitation of Actions Act stipulate that if the land is registered under one of the registration acts then the title is not extinguished, but held in trust for the person in adverse possession until he shall have obtained and registered a High Court Order vesting the land in him.
Section 37 provides that:-(1)Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37, to land or easement or land comprised in a lease registered under any of those Acts, may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.”
In this case, the claim for adverse possession cannot succeed because the land LR .NO. LEMBUS/KABlMOl/83 does not exist after its subdivision and creation of new parcels and land LR NO 162 is illegally registered in the names of the 1st defendant and not the plaintiff and therefore the 1stdefendant cannot plead adverse possession in respect of the land registered in his name. In law one cannot claim adverse possession in a parcel of land that does not exist or is registered in his name. The counter claim has no basis and is dismissed with costs.