When brothers fight over property: Court orders restoration of deceased father's name on disputed land

A dispute between brothers over a parcel of land in Taita Taveta approximately worth Sh55 million came to an end after a court ordered restoration of the name of their deceased father as the registered owner.

The Environment and Land Court (ELC) in Voi found that registration and subsequent transfer of the 22.4 hectares of land, located within Mbololo area, to one of the brothers was not in accordance with the law,

It directed the Land Registrar Taita Taveta county to cancel entries made in the register in respect to the transfer and issuance of title to Jefferson Mwaviswa and restore the name of Joseck Mwambeo (deceased) as the registered proprietor of the land.

Justice Edward Wabwoto further declared that the registration and subsequent transfer of the land to Mr Mwaviswa was illegal,null and void.

Mr Peter Mwambaga went to court accusing his brother (Mr Mwaviswa) of maliciously swearing an affidavit, after the death of their father, claiming that he was the only son of the deceased and was entitled to inherit his (deceased) estate.

It was Mr Mwambanga’s case that their father was the registered owner of the parcel of land and that he (father) died leaving behind the property.

Justice Wabwoto noted that from the evidence tendered, the title deed was issued to Mr Mwaviswa on September 24, 2023, yet there were no documents availed to support the same.

He ruled that from the evidence that was adduced, it was evident that there were gaps as to how the property was transferred to the defendant (Mr Mwaviswa).

 “This can only imply that the defendant did not acquire the title to the property lawfully,” ruled the court.

It further noted that no letters of administration form LR 6 and form LR 57 Confirmation of Grant of Letters of Administration were produced as evidence to confirm that the transfer was lawful.

The court further noted that no letters of administration, confirmed grant or other succession documents were produced to demonstrate how the property was transmitted from the deceased to the defendant.

“The court therefore finds that the defendant failed to demonstrate a lawful root of title,” ruled Justice Wabwoto.

The judge further said that it was also evident that any dealings of a deceased property without completion of a succession process is prohibited as stipulated under the Law of Succession Act. 

“In the circumstances, it is the finding of this court that the plaintiff (Mr Mwambaga) has successfully proven that the registration and subsequent transfer of the land to the defendant was not in accordance with the law for failing to follow due process,” ruled the court.

The court ruled that it was satisfied that the certificate of title held by the defendant was procured illegally thus it was impeachable and ought to be cancelled.

It also ruled that upon rectification of the register; the land shall revert to the name of the deceased and shall form part of his estate pending lawful distribution through succession proceedings.

Mr Mwambaga had argued that his brother (defendant) went on and procured the title of the land through corrupt, illegal and fraudulent means.

The plaintiff also told the court that he later leant that the land had changed hands to his brother without their express consent and permission.

Mr Mwambaga said that the land belonged to all of them and has never been allocated to any person.

On his part, Mr Mwaviswa denied maliciously swearing an affidavit to prove the legitimate relationship of his late father.

Mr Mwaviswa said he was rightfully entitled to the property as the son of the first wife to the deceased.

He also told the court that the plaintiff (Mr Mwambanga) had not disclosed that his share of the property was with his mother who was the second wife to the deceased.

Mr Mwaviswa claimed that the case was meant to disinherit and dispossess the family of the first wife of the land.

He also told the court that his father died when they were using the land and his sisters allowed him to have title to the land in his name.

Mr Mwaviswa also said that his father had about five different parcels of land and that his father showed him the suit land before he passed away.