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ELCPartially AllowedELC Suit No. 376 of 2009· [2017] KEELC 3406 (KLR)

Bilha Wanjiku Ndungu v Kuria Goro [2017] KEELC 3406 (KLR)

Environment and Land Court
9 March 2017
EOE. O. Obaga
1,127 words in judgment
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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, administratrix of the estate of her mother Lucy Njoki Goro, sued the defendant, her uncle, seeking a declaration that the transfer of Plot No. B 0816A Dandora Phase II to the defendant was fraudulently obtained, together with mesne profits from 1983, costs and interest. The deceased, the original allottee/lessee, died on 1st June 1980. The plaintiff's evidence, which went in unopposed after the defendant failed to attend the hearing despite service, showed that on 18th October 1983 the defendant attended the Public Trustee and filled P.T. Form 1 falsely stating the deceased was single and had no children. Relying on confirmations from the District Commissioner's Office Nyandarua and the Public Trustee that the defendant was the sole heir, the Director of Housing Development, Nairobi City Commission changed ownership of the suit land into the defendant's name. The defendant's defence conceded the change of ownership but alleged it was done with the deceased's permission and to recover medical charges he had paid, assertions the court rejected as unsupported. The court found the plaintiff proved fraud on a balance of probabilities, holding that the defendant hatched a scheme to defraud. Judgment was entered partially in the plaintiff's favour: a declaration that the transfer was fraudulently obtained, with entries to be reversed and the plaintiff registered as owner in place of the defendant, and costs to the plaintiff. The claim for mesne profits was rejected because no evidence was adduced of the rental houses on the property, making assessment impossible. Judgment was delivered at Nairobi on 9th March 2017 by E. O. Obaga J.

Key legal issues

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01

Whether the transfer of the suit land to the defendant was fraudulent

Holding

Yes - the defendant falsely declared to the Public Trustee that the deceased was single and had no children, procuring registration of the property in his name

Reasoning

The defendant filled P.T. Form 1 at the Public Trustee indicating the deceased was single with no children. Letters from the District Commissioner's office and the Public Trustee, based on these false confirmations, led the City Commission to change ownership records. The court found this constituted a scheme to defraud, proved on a balance of probabilities through the plaintiff's uncontroverted evidence.

p. 2
02

Whether the plaintiff was entitled to mesne profits

Holding

No - the claim was rejected for lack of evidential basis

Reasoning

Although the plaintiff pleaded that rental premises existed on the suit land and that the defendant had been enjoying rental income, no evidence was led on the nature or value of the rental houses, if any. Without such evidence the court could not assess mesne profits, so that head of claim failed despite the suit otherwise succeeding.

p. 3

Legal principles established

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  • Fraud vitiating a transfer must be proved by the party alleging it, and a transfer procured through false declarations to statutory bodies regarding heirs of a deceased is fraudulent and reversible

Court orders

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  1. 1.A declaration that the transfer of parcel No. B 0816 A Dandora Phase II in the defendant's name was fraudulently obtained, with entries to be reversed and the plaintiff's name registered in place of the defendant
  2. 2.The costs of the suit to be borne by the defendant
  3. 3.The claim for mesne profits rejected
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (ELC Suit No. 376 of 2009)

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, "Bilha Wanjiku Ndungu v Kuria Goro [2017] KEELC 3406 (KLR)", Case Analysis (2017). ELC Suit No. 376 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3406/eng@2017-03-09

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