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ELCDismissedNot stated in judgment (Notice of Motion dated 31st May, 2017)· [2017] KEELC 1783 (KLR)

Wairimu Gitau v Administrator of the estate of Edward Gitau Njenga (Deceased) & 3 others [2017] KEELC 1783 (KLR)

Environment and Land Court
27 September 2017
1,541 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kajiado Environment and Land Court dismissed a family injunction over Ngong land, ruling registered titles are protected unless fraud is proven with evidence.

What this practically means

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Executive summary

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This was an unopposed Notice of Motion dated 31st May 2017 brought by the Plaintiffs, Hana Njoki Gitau and another, seeking a temporary injunction in respect of Plot No. 305/117/Residential Ngong Township (now Ngong Township Block 1/382), allegedly transferred to the late Edward Gitau fraudulently while Nairobi Succession Cause No. 668 of 2006 was pending. The Plaintiffs contended that the Certificate of Lease issued to Edward Gitau on 31st January 1994 was a forgery, since as late as 3rd February 2014 the 1st Plaintiff was paying rent arrears while the property remained registered in the name of the late Johana Gitau Muchiri, and the property had been distributed to the 1st Plaintiff under the succession cause. The Defendants neither entered appearance nor filed a replying affidavit, though they were duly served. The court framed two issues: entitlement to the interlocutory injunction, and its own jurisdiction over property already the subject of the succession cause. Applying the Giella v Cassman Brown principles and Section 26(1) of the Land Registration Act, the court found the Plaintiffs had not proved fraud: a 1993 letter from Ol Kejuado County Council showed the deceased himself had sought and obtained consent to transfer the land to Edward Gitau Njenga, and the Certificate of Lease predated the succession cause by over ten years. The court held the Plaintiffs' remedy lay under Section 42 of the Law of Succession Act in the succession cause. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case with a probability of success for a temporary injunction under the Giella v Cassman Brown principles

Holding

No. The alleged fraud in obtaining the Certificate of Lease was not proved; the deceased himself initiated the transfer with the County Council's consent, and the Certificate of Lease was obtained more than ten years before the Succession Cause was filed.

Reasoning

Applying Giella v Cassman Brown, the court examined whether the Plaintiffs demonstrated a prima facie case. Section 26(1) of the Land Registration Act protects the registered proprietor's title as prima facie and indefeasible except for fraud or misrepresentation. The 1993 consent letter showed the deceased initiated the transfer himself, and the Plaintiffs produced no materials proving fraud. Fraud allegations require oral evidence and cannot be determined at interlocutory stage.

p. 3
02

Whether the court has jurisdiction over a dispute concerning property already subject of Nairobi High Court Succession Cause No. 668 of 2006

Holding

The court declined to overturn the inter vivos disposition; the Plaintiffs' remedy lies in the Succession Cause under Section 42 of the Law of Succession Act, which provides for accounting of lifetime advances in distribution.

Reasoning

The court held it cannot overturn the wishes of a deceased who advanced his property to a person while alive. Since the estate had been distributed by the Certificate for Confirmation of Grant, the Plaintiffs' recourse was to move the succession court under Section 42, which takes lifetime gifts or settlements to a child or grandchild into account when determining that beneficiary's share of the net intestate estate.

p. 3

Legal principles established

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  • A certificate of title or lease is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud or misrepresentation to which the proprietor is party, or where acquired illegally, unprocedurally or through a corrupt scheme
  • Registration of a person as proprietor of a lease vests in that person the leasehold interest with all rights and privileges appurtenant thereto
  • Property given or settled by a deceased during his lifetime to a child or grandchild is taken into account in determining that beneficiary's share of the net intestate estate under Section 42 of the Law of Succession Act

Court orders

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  1. 1.The Plaintiffs' Notice of Motion dated 31st May, 2017 is dismissed
  2. 2.Costs will be in the cause

Authorities

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Legislation

  • Law of Succession ActSection 45
  • Law of Succession ActSection 42
  • Civil Procedure ActSections 1, 1A, 1B, 3, 3A & 63
  • Civil Procedure RulesOrder 40 rule 1(1) and Order 51 rule 1
  • Land Registration ActSection 26(1)
  • Land Registration ActSection 80(1)
  • Land Registration ActSection 24(b)
  • Constitution of Kenya, 2010Articles 40 & 159(2)

Cases cited (2)

  • Giella vs. Cassman Brown & Co. Ltd
    (1973) E.A 358
  • Ahmed Ibrahim Suleiman and Another vs. Noor Khamisi Surur
    (2013) eKLR
Jurisdiction invoked
Articles 40 & 159(2) of the Constitution; Section 45 of the Law of Succession Act; Sections 1, 1A, 1B, 3, 3A & 63 of the Civil Procedure Act; Order 40 rule 1(1) and Order 51 rule 1 of the Civil Procedure Rules; Sections 26(1)(a) and 80(1) of the Land Registration Act

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, "Wairimu Gitau v Administrator of the estate of Edward Gitau Njenga (Deceased) & 3 others [2017] KEELC 1783 (KLR)", Case Analysis (2017). Not stated in judgment (Notice of Motion dated 31st May, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1783/eng@2017-09-27

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