Joseph Munene Muriithi & 2 Others v Edward Muriithi Gathungu & 2 Others [2017] KEELC 481 (KLR)
The bottom line
#A Kenyan court revoked fraudulent land registrations, confirming that even informal family land agreements can be legally binding if properly witnessed and approved.
What this practically means
#Executive summary
#Key legal issues
#Whether the family agreement dated 16th January 2014 was enforceable
The agreement was enforceable, having complied with Section 3(3) of the Law of Contract Act and received Land Control Board consent, and the subsequent transfer of the parcels to the 2nd and 3rd defendants was fraudulent
The court examined the 'home-made' agreement, noted the 3rd plaintiff withdrew her caution on the original parcel shortly after it, that LCB consent for transfers to the plaintiffs was granted on 27th February 2014, and that the 1st defendant's own statement confirmed voluntary transfers. The court inferred the 1st defendant voluntarily entered the agreement and that the later transfers to the defendants were therefore fraudulent.
Whether there was a complete gift of the suit parcels to the plaintiffs
No complete gift was made because the parcels were never registered in the plaintiffs' names, but an unregistered transfer operates as a contract passing a beneficial interest
Under Section 37 of the Land Registration Act 2012, a transfer is completed by registration of the transferee. Since registration of the plaintiffs never occurred, there was no complete gift. However, relying on the Anglican Church Mbeere Diocese case, the court held that an unregistered transfer operates as a contract passing a beneficial interest, making the agreement enforceable.
Whether the registration of parcels 2426 and 2427 in the 2nd and 3rd defendants was fraudulent
The subsequent transfer and registration was fraudulent, null and void, as consent had already been granted for transfer of the same parcels to the plaintiffs
The Land Control Board had on 27th February 2014 approved transfer of the parcels to the 1st and 2nd plaintiffs as gifts, yet on 29th May 2014 the same Board approved transfer of the same parcels to the defendants. The court held no valid consent could be given twice over the same parcels and condemned the fraud perpetrated in land registries.
Whether the defendants' counter-claim for permanent injunction and eviction should succeed
The counter-claim was dismissed because the parcels do not belong to the defendants following the finding of fraud, and the 1st defendant could not approbate and reprobate regarding parcel 2425
The 1st defendant's own statement showed parcels 2516, 2517, 2530 and 2531 were sub-divisions of parcel 2427, whose transfer to the defendants had been found fraudulent. He had also acknowledged the transfer of parcel 2425 to the 3rd plaintiff, so he could not seek to injunct her. The authorities cited by the defendants were distinguished as involving forced distribution, unlike this voluntary transaction.
Legal principles established
#- Parties are bound by their pleadings and the court cannot adjudicate on matters not pleaded; evidence at variance with pleadings must be disregarded
- A transfer not completed by registration passes no legal title but can operate as a contract passing a beneficial interest to the transferee
- A party cannot approbate and reprobate - having acknowledged a transfer of land, a party cannot seek to injunct the transferee from using it
- A subsequent transfer of land already validly transferred to another party with Land Control Board consent is fraudulent, null and void
Court orders
#- 1.A declaration that the registration of land parcel Nos MUTIRA/KIRUNDA/2426 and 2427 in the 2nd and 3rd defendants' names was fraudulent and the said registration is hereby revoked
- 2.A declaration that MUTIRA/KIRUNDA/2426 and 2427 belong to the 1st and 2nd plaintiffs and the same be registered in their names
- 3.The defendants' counter-claim is dismissed
- 4.Parties shall meet their own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to title and registration of land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Munene Muriithi & 2 Others v Edward Muriithi Gathungu & 2 Others [2017] KEELC 481 (KLR)", Case Analysis (2017). ELC Suit at Kerugoya (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/481/eng@2017-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.