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Keni v Kenny [2025] SBHC 61; HCSI-CC 284 of 2021 (9 May 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 284 of 2021

BETWEEN

MOSES BOBBY KENI
Claimant

AND:

CHRIS KENNY
Defendant

Date of Hearing: 3 April 2025
Date of Judgment: 9 May 2025

Mr C Fakarii for the Claimant
Mr L Puhimana for the Defendant

JUDGMENT

AULANGA, PJ:

1. This matter concerns a family dispute over land ownership and inheritance between Mr. Moses Bobby Keni (the Claimant) and his half-brother Mr. Chris Kenny (the Defendant), both are sons of late Bobby Keni, who passed away without a will in 2011. The land at the heart of this dispute is registered as Parcel No. PN 192-004-1510, located in Henderson, Honiara.

Background facts

2. The dispute arises from events that began over two decades ago. In 2004, the late Bobby Keni lawfully purchased a piece of land registered as PN 192-004-245 in Henderson. Two years later, in 2006, he moved his family (including the Claimant and the Defendant) onto the land after building a family home there.
3. In 2011, their father (Bobby Keni) died intestate. Their elder brother, Bobby Fika, then became the first administrator of their father’s estate.
4. In 2015, the original parcel (PN 192-004-245) was subdivided into two lots: PN 192-004-1510 and PN 192-004-1511. PN 192-004-1511 was transferred to one of their siblings, Jonathan Bobby Yavah, while PN 192-004-1510 remained the subject of this dispute. The Claimant and his siblings remain the beneficiaries of these properties.
5. In 2016, Fika however died. Following his death, on 12^th October 2016, the Defendant applied and was granted Letters of Administration of the estate by the High Court in the place of his late brother Fika. It is important to note that, except for the order for the legal administration of the properties, there was no proper distribution of the properties under intestacy or will or under any proceeding brought in the High Court. That remains to be so at the filing of this proceeding.
6. The Claimant and another sibling are currently residing on the property, PN 192-004-1510, at the Henderson area. In 2016 and after the Defendant was granted the Letters of Administration of their later father’s properties or estates that he caused PN 192-004-1510 to be transferred into his own name.
7. In the claim (as amended), the Claimant seeks several declaratory orders: (i) that he holds overriding interests and adverse possession of PN 192-004-1510 on the basis of actual and continuous occupation of the property since 2006, (ii) that he holds equitable interests of PN 192-004-1510, as a beneficiary of the estate of their late father Bobby Keni, (iii) that he and his siblings cannot be evicted from the property on the basis of them having overriding interests of the property that are binding upon the Defendant notwithstanding the Defendant’s registration as the legal proprietor, and (iv) costs.

Issues for consideration

8. Upon considering the facts of this proceeding described above and the divergent submissions from the parties, the primary issues for me to determine are:
   1. Whether the Claimant possesses equitable interests in PN 192-004-1510 (property);
   2. Whether the Claimant can assert an overriding interest in the property;
   100. Whether the Claimant can claim adverse possession of the property; and
   4. Whether the Defendant, as registered proprietor, is entitled to evict the Claimant and if I may add, and his siblings.

Equitable interest

9. It is important, for the reasons to be disclosed, to note the history of this property in dispute (PN 192-004-1510). There is no dispute that it was subdivided from the larger parcel in PN 192-004-245. PN 192-004-245 was a personal property of late Keni, the father of the Claimant and the Defendant. Despite late Fika was the first administrator of their father’s estate, the disputed property remains late Keni’s property held in trust for the beneficiaries, herein, his natural and surviving issues. Furthermore, even when the Defendant was the administrator of the estate after the death of Fika, the property herein could not be said to be his or Fika’s personal property. Rightly put, it was the property of their late father, Keni, which upon his death should be governed by the rules of succession under the Wills, Probate and Administration Act (Cap 33).
10. Prior to the death of their father in 2011, late Keni did not devolve the property (PN 192-004-1510) by will to any of his children. Further, he did not transfer it to any of his children as personal gift. He died intestate, meaning, he did not devolve or distribute the disputed property to his children. In the absence of any will, I must accept the trite finding that neither the Claimant nor the Defendant or any of their siblings can rightfully and conclusively assert that the property was their personal property given or purchased from their father prior to his death. It is part of the residual estate of their father under section 72 of the Wills, Probate and Administration Act. Hence, in my view, the disputed property was held in trust for the beneficiaries or the surviving issues (including the Claimant) of late Keni as recognised under section 84 of the Wills, Probate and Administration Act.
11. The Claimant is the biological child of the late Bobby Keni, and so is the Defendant. There was no proper distribution of the properties (PN 192-004-1510 inclusive) under intestacy with full involvement and consent of all the beneficiaries, and more importantly, as endorsed by the Court. Hence, all the children (including Moses Keni) are entitled to have a beneficial interest or share in the estate.
12. It was argued by counsel for the Defendant that since PN 192-004-1510 was registered in the Defendant’s name in 2016, that become his personal property pursuant to section 110 of the Land and Titles Act Cap 133. His indefeasibility of title by registration of the property recognised under the Torren System therefore extinguishes any equitable interests of the Claimant to the land.
13. The Defendant’s contention is flawed and must be rejected on the basis that he acquired the title to the property in the context of estate administration, and not in his personal capacity as a bona fide purchaser. In other words, the transfer of the property to his personal name was made in the context of administering the estate. The Letters of Administration Order issued by this Court on 12^th October 2016 did not explicitly state that he can convert or cause the property (PN 192-004-1510) to his personal name in absence of consent of all the beneficiaries. As such, equity regards that the beneficial interests held by the Claimant and his siblings will still survive any legal registration of the property if the transfer was part of the estate administration, and not as a personal gift or as a result of any outright purchase.
14. It is evident that there has not been any final and equitable distribution of the deceased’s estate with the full involvement and consent of all the beneficiaries. I therefore find that the Claimant retains a valid equitable interest in the land. The Claimant, as adjudged, holds both proprietary and personal rights in equity, and enforceable against the property held in trust for the Claimant and his siblings.

Overriding interest

15. The doctrine of overriding interests serves to protect those who may not be registered title holders but who nonetheless have legitimate claims to occupy and enjoy the property, especially those in actual occupation. Put it another way, overriding interests are generally known as unregistered rights that bind the legal proprietor of the property, especially if the person is in actual occupation of the land. In this case, the unchallenged evidence shows that the Claimant and his siblings had been living on the land since 2006 when they were relocated to that land from Fulisango area in East Honiara. Furthermore, they continued with their occupation of the disputed property even after it was subdivided and created in 2015. The Claimant has been in actual occupation of the property for a good number of years up to now.
16. The Defendant was well aware of the Claimant’s occupation of the property at the time he registered the property under his name. The Defendant conceded in his written submission (at paragraph 4.4) that the Claimant had been living on the property even after it was registered under his personal name. This means that the Claimant’s occupation was with the knowledge of the Defendant, both before and after the land was registered in his name. In my view, this must be based on familial consent since the property was a trust property held for them as beneficiaries to the estate of their late father.
17. Section 114 (g) of the Land and Titles Act recognises a person as having an overriding interest in the property notwithstanding the property is registered and owned by another person. This proviso is unequivocal. Such occupation, particularly when linked to a trust or equitable interests, can constitute an overriding interest in the property in dispute. Some determinant factors to this are: actual occupation of the property, having a proprietary right arising under a trust property and having actual knowledge of the occupation by the registered proprietor.
18. In this case, it is my view that all factors determinative of whether the Claimant has an overriding interest in the property in dispute tilt to the Claimant’s favour. His physical occupation, familial entitlement, and the Defendant’s knowledge all support the conclusion that his rights override the Defendant’s title.
19. Despite the Defendant has registered the property under his name, that title is in name only as held in Butala v Maelifaga [2010] SBHC 81, where the Court stated (at paragraph 10):
    • “10. Section 114 of the Lands and Titles Act says the owner of a registered interest in land shall hold it, "subject to such of the following overriding interests as may, for the time being, subsist and affect (the land)." At subsection (g) it says overriding interests include, "the rights of a person in actual occupation of the land.... save where enquiry is made of such person and the rights are not disclosed". I have made a finding of fact MM paid at least $25,000 to GF in 1995 and that GF allowed MM and JM to take possession of the property. I have found no evidence that rent or any other payment was demanded by GF or paid or offered by the Defendant in regard to the occupation of the land. I find that the Claimant was well aware of JM's occupation of the land but made no enquiries of her as to her rights over the property. He consulted lawyers at the time of the signing of the transfer and so could have asked for advice about the effect of her living in the property. GF knew she was saying the land was hers and I cannot believe that AB was not aware of the "dispute" through his dealings with GF. If GF concealed the details from him then his remedy is against GF. This is a clear case of overriding interests as set out in s.114 (g) of the Lands and Titles Act. What that means is the Claimant may be the registered owner of the FTE in PN 191-019-43 but he takes the title subject to the rights of the Defendant. She is entitled to live there rent free for as long as she wants and she is entitled to use the property as she alone sees fit. The Claimant has no control over the property. He is, in effect, owner in name only. So far as the Defendant is concerned, the only thing she cannot do is sell the property. However, she has an equitable interest in respect of the $25,000 paid to GF.” (underlined mine).
20. I therefore find that the Claimant’s interest overrides the registered title of the Defendant to the extent of their beneficial interest under the estate.

Adverse possession

21. Adverse possession as defined in Moses v Lovegrove cited in Bird v Registrar of Titles [1980] SILR 47 and more recently in HDD Development Ltd v Vaike [2023] SBCA 7, means possession without the permission of the landlord or owner of the property. In a case where the registered owner has acquiesced for such use or occupation of the land, a claim for adverse possession simply cannot arise.
22. The Claimant has wisely abandoned his claim for adverse possession since the disputed property was created in 2015. This is less than the 12 years threshold duration test required in section 224 (1) of the Land and Titles Act. In my view, that is a reasonable concession. As the evidence stands, the claim for adverse possession must fail. The possession and occupation of the property by the Claimant and his siblings are not adverse or without the consent of the legal proprietor in law, as they arise from familial entitlement and not by exclusion or defiance of the true owner. Moreover, the Claimant has consistently recognized the land as part of the estate of their father. Such recognition is incompatible with a claim of adverse possession.

Eviction of the Claimant and his siblings from the property

23. I have reached the conclusion that the Claimant, as one of the beneficiaries of their late father’s estate, has equitable right and interest in the property. As such, the Defendant can only evict the Claimant from the property if the Claimant’s equitable right is first extinguished. The Defendant can be the registered title holder, but since the Claimant has the overriding and/or equitable interest in the property, the Court cannot grant eviction against the Claimant. As the Claimant has been found to retain both the equitable and overriding interest in the land, it would be inequitable and unjust to permit the Defendant to evict him and his siblings at this stage. Any attempt for eviction must be preceded by a lawful and final distribution of the estate, with an opportunity for all beneficiaries to be heard or participate in the process.

Conclusion and Orders

24. In light of the above findings, I therefore make the following orders:
    1. It is declared that the Claimant, Moses Bobby Keni, holds an equitable interest in land Parcel PN 192-004-1510, as a beneficiary of the estate of the late Bobby Keni.
    2. It is further declared that the Claimant’s interest in the said land constitutes an overriding interest, binding upon the Defendant, Chris Kenny notwithstanding his registration as legal proprietor of land Parcel PN 192-004-1510.
    3. The claim for adverse possession is dismissed.
    4. The Defendant shall not take any steps to evict the Claimant and or his siblings from PN 192-004-1510 without leave of this Court.
    5. Each party to bear their own costs, given the familial nature of the dispute.

THE COURT
Hon. Justice Augustine Sylver Aulanga
PUISNE JUDGE