Saleem Ghalia, Wahida Ghalia & Mohammed Ayub Mussa Khamisa (Suing as Administrators of the Estate of Sadiq Ghalia (Deceased)) v Kwale District Land Registrar & 5 Others

DW-1 (Juma Mwinyi Mbata) admitted in cross-examination that neither he nor his co-defendants held letters of administration or any document authenticating their relationship to the alleged deceased predecessors. Under Section 82(a) of the Law of Succession Act only personal representatives with a valid grant may enforce actions surviving a deceased. Moreover, the predecessors' alleged rights derived from a Tribunal award quashed by certiorari; a void award transmits nothing, so the heirs inherited no enforceable interest and their claim is a nullity ab initio.

Section 3(1) of the repealed Land Disputes Tribunals Act confined Tribunals to boundary, occupation and trespass disputes, not ownership of registered land. The Principal Magistrate's adoption of the award did not expand his jurisdiction, and by 2015 magistrates could handle land matters only if gazetted; Hon. P.K. Mutai was not gazetted per Gazette Notice No. 1472. Jurisdiction cannot be conferred by consent or adoption, so all decrees and the register opened under them were nullities.

The deceased was registered on 29th May 1980 following transfers for valuable consideration from the first allottees named in the adjudication record. The original 1974 register showed him as the last registered owner with no entry cancelling or revoking his title. Under Sections 24, 25 and 26 of the Land Registration Act the certificate is conclusive evidence of ownership, challengeable only on proven fraud to which the proprietor is party or illegality; none was proved.

The Registrar conceded the second register was backdated to 1974, unsupported by any court order, gazette notice, indemnity or police abstract; the original register was never lost; no succession documents supported registration of heirs; no entry ever revoked the deceased's title; and the title issued despite subsisting certiorari and prohibition orders. Fraud must be specifically pleaded and strictly proved, but here the Registrar's own testimony established illegality and irregularity on a standard above mere balance of probabilities.

Res judicata under Section 7 of the Civil Procedure Act requires a decision of a court of competent jurisdiction. The Msambweni Tribunal award and the Principal Magistrate's adoption orders were void ab initio for want of jurisdiction, having determined ownership contrary to Section 3(1) of the Land Disputes Tribunals Act and despite the High Court's certiorari and prohibition in Misc. Application No. 500 of 2009. A nullity is in law as if it had never been made and cannot bar the present suit.

Section 80(1) permits rectification where registration was obtained by fraud or mistake. The exception in Section 80(2) for purchasers in possession for value does not apply since the 3rd–6th Defendants gave no consideration and knew of or substantially contributed to the fraud. The Court, exercising jurisdiction under Section 13(7) of the ELC Act, could grant declarations and orders of permanent preservation.