Loise Wanjiru Irungu & 4 others v Joel Nthei Mwanzi & 6 others [2017] KEELC 3835 (KLR)
The bottom line
#Even registered land titles in Kenya can be cancelled if bought from someone who sold a dead person's property illegally.
What this practically means
#Executive summary
#Key legal issues
#Identity of the suit parcel
The land claimed by plaintiffs and defendants is one and the same parcel
Drumvale records allocated plot Nairobi/Block 118/58 to Harun Katiku Mummo, member number 97. Defence documents, including the Mbukoni sale agreement, describe the mother number as 97 within Block 118/58. No separate parcel 118/97 is substantiated; the reference arises only from unattached scrutiny documents.
Validity of plaintiffs' chain of title
The sale by the widow and son before confirmation of grant was intermeddling, and the subsequent revocation of the grant invalidated the transaction; plaintiffs acquired no good title
The 1998 sale by Grace and John Katiku predated confirmation of the grant (1/9/2000), contravening section 45 of the Law of Succession Act. The confirmed grant was later revoked by court order, further invalidating the sale. Dominic Musembi therefore passed no title to the plaintiffs.
Indefeasibility of plaintiffs' title
Plaintiffs' certificate of lease is impeachable under section 26(1)(b) of the Land Registration Act because it was obtained irregularly and unlawfully
Although plaintiffs held a registered lease, article 40(6) of the Constitution denies protection to unlawfully acquired property. Tracing the root of title, the court found the entire chain from Grace Katiku through Dominic Musembi to registration tainted by illegality.
Validity of Mbukoni/defendants' transactions
The transactions to Mbukoni and defendants were incomplete but not illegal; defendants acquired possessory interests which now mature into ownership on the counterclaim
Katiku Mummo authorized his brother to sign the sale agreement and ceded possession to Mbukoni, which subdivided and sold to defendants. Though transfer was never completed, no illegality was found; defendants' interests were passed on.
Legal principles established
#- No person shall intermeddle with free property of a deceased person except under a grant of representation
- A title obtained illegally, un-procedurally or through a corrupt scheme is impeachable even against an innocent purchaser
- Constitutional property rights do not extend to unlawfully acquired property
Court orders
#- 1.Plaintiff's claim dismissed
- 2.Defendant's counterclaim allowed
- 3.Declaration that defendants are the lawful owners of land parcel No. Nairobi/Block 118/58
- 4.Cancellation of the certificate of lease dated 07.07.05 issued in the names of the plaintiffs
- 5.Permanent injunction barring plaintiffs from interfering with land parcel No. Nairobi Block 118/58
- 6.Each party to bear their own costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to title to land
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Juster Gatwiri Muriithi & another v Emmanuel Muchomba Kinoti [2020] KEELC 1320 (KLR)[2020] KEELC 1320 (KLR)23 Sept 2020followed
Cite this brief
#Cite this brief
Caselaw, "Loise Wanjiru Irungu & 4 others v Joel Nthei Mwanzi & 6 others [2017] KEELC 3835 (KLR)", Case Analysis (2017). ELC No. 1890 of 2007 (formerly H.C.C.C. No. 547 of 2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3835/eng@2017-11-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.