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ELCAllowedELC Suit No. 405 of 2013· [2016] KEELC 1284 (KLR)

Sylvia Mwakwanyaga Maina v Joseph Maina Nganga & 5 others [2016] KEELC 1284 (KLR)

High Court of Kenya, Environment & Land Division
16 September 2016
LGL. Gacheru
2,539 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, widow and sole administrator of the estate of Joseph Maina Nganga (who died on 16th November 1995), sued six defendants over land parcel Kajiado/Kipeto/175 registered in her late husband's name in 1987. She discovered in December 2012 that the parcel had in 2011 been subdivided into five portions by a person impersonating her deceased husband, with resultant titles including Kajiado/Kipeto/4348, 4349 and 5620 subsequently passing through the defendants. She sought rectification of the register, nullification of the transfers and cancellation of the resultant titles. The defendants were served by newspaper advertisement and never entered appearance; interlocutory judgment was entered on 14th April 2014 and the suit proceeded by formal proof. In uncontroverted evidence the plaintiff produced the death certificate, original title deed, grant of letters of administration, green card, correspondence with the Land Registrar and demand letters. The court found the deceased could not have effected the 2011 subdivision and that only the administrator, vested with the estate under Section 79 of the Law of Succession Act, could deal with the property; dealings by others were intermeddling contrary to Section 45. Applying Sections 26 and 80(1) of the Land Registration Act and the decision in Elijah Makeri Nyangwara, the court held the titles were obtained by fraud and through an illegal, unprocedural and corrupt scheme and were open to challenge. Judgment was entered for the plaintiff: the Registrar of Titles was directed to rectify the register, nullify and cancel the subdivisions and resultant titles, and revert the register to its original form, with costs and interest to the plaintiff.

Key legal issues

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01

Authority to deal with a deceased's registered land

Holding

Only the administrator vested with the estate under Section 79 of the Law of Succession Act could lawfully subdivide or dispose of Kajiado/Kipeto/175; any other dealing was intermeddling contrary to Section 45.

Reasoning

The registered owner died on 16th November 1995, yet the subdivision occurred in 2011 under the name of the deceased. The plaintiff held a confirmed grant as administrator and alone had power to deal with the estate property. The imposter's dealings and the defendants' resultant titles were therefore fraudulent, illegal, null and void.

p. 3
02

Indefeasibility of title versus fraud

Holding

Though Section 26 of the Land Registration Act confers prima facie absolute and indefeasible ownership, titles acquired illegally, unprocedurally or through a corrupt scheme may be impugned and cancelled.

Reasoning

The court relied on Section 26(1) of the Land Registration Act and Section 143(1) of the repealed Registered Land Act, holding that the defendants obtained registration after subdividing a deceased person's land without the administrator's authority and did not appear to explain, so the registration was fraudulent and warrants cancellation.

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03

Rectification of the register

Holding

The court has power under Section 80(1) of the Land Registration Act (mirroring Section 143(1) of the repealed Registered Land Act) to order cancellation of registrations obtained by fraud or mistake.

Reasoning

Since the subdivisions and transfers flowed from the fraudulent impersonation of a deceased proprietor, the register in respect of the original title was liable to rectification by cancelling the resultant titles and reverting to the original position.

p. 4

Legal principles established

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  • Title of a registered proprietor under the Land Registration Act, though prima facie indefeasible, may be challenged on grounds of fraud or where the certificate of title was acquired illegally, unprocedurally or through a corrupt scheme.
  • Where a registration was obtained, made or omitted by fraud or mistake, the court may order rectification of the register.
  • Dealings with a deceased person's free property by any person other than the personal representative constitute intermeddling and are void.

Court orders

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  1. 1.An order directing the Registrar of Titles, Kajiado Land Registry to rectify the Register in respect of title number Kajiado/Kipeto/175 by nullifying and cancelling all the subdivisions and transfers thereon
  2. 2.Nullification and cancellation of title numbers Kajiado/Kipeto/4348, 4349 and 5620 and reversion of the Register to its original form before the purported subdivisions and transfers
  3. 3.Judgment for the plaintiff against the defendants jointly and severally
  4. 4.The plaintiff is entitled to costs of the suit and interest thereon

Authorities

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Legislation

  • Law of Succession ActSection 79
  • Law of Succession ActSection 45(1)
  • Registered Land Act (repealed)Section 27(a)
  • Registered Land Act (repealed)Section 143(1)
  • Land Registration ActSection 80(1)
  • Land Registration ActSection 26(1)

Cases cited (1)

  • Elijah Makeri Nyangwara Vs Stephen Mungai Njuguna & Another
    (2013) eKLR
Jurisdiction invoked
Original civil jurisdiction of the High Court (Environment and Land Division) over claims relating to title to land

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Sylvia Mwakwanyaga Maina v Joseph Maina Nganga & 5 others [2016] KEELC 1284 (KLR)", Case Analysis (2016). ELC Suit No. 405 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1284/eng@2016-09-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.