Lucy Karauki Kirambia (suing as the legal representative of the estate of Peter Muriungi Kaunga (deceased) v Muthengi M’mwathi Muthigu & 2 others [2018] KEELC 494 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the registration of the whole of parcel South Tharaka/Tunyai 'B'/107 in the 1st defendant's name was procured by fraud and collusion so as to justify rectification
Yes. The deceased and his family had occupied the southern portion, yet it was registered in the 1st defendant's name; the 2nd defendant failed to defend the fraud allegations; on a balance of probability fraud by collusion was proved and the registration must be disturbed.
PW1 and PW2 gave consistent, credible and unchallenged evidence that the deceased's father gathered the lower portion in 1964, gave it to the deceased, who lived, cultivated and was buried there with his family. DW1's own evidence was riddled with contradictions. DW2 and DW3 disowned their witness statements, destroying their probative value. The 2nd defendant filed no defence or submissions, leaving the fraud and collusion allegations uncontroverted. Occupation of the land by the deceased's family coupled with its registration to the 1st defendant proved fraud on a balance of probability.
Whether the weight of the defendants' evidence could sustain the 1st defendant's registered title
No. The defence evidence was a litany of contradictions; DW2 and DW3 signed statements whose contents they did not know, reducing their probative value to next to zilch.
DW2 and DW3 each admitted in cross-examination that they signed witness statements without knowing or reading their contents, effectively disowning them. Their statements were almost identical, and their oral evidence contradicted their statements on matters such as knowledge of the plaintiff and of the deceased's clan. The court found the defence evidence untrustworthy and preferred the consistent and unchallenged testimony of PW1 and PW2.
Legal principles established
#- A first registration under the Land Registration Act is not a shield where fraud, misrepresentation or mistake is proved.
- Uncontroverted allegations of fraud against a defendant who declines to defend may be proved on a balance of probability by evidence of occupation coupled with wrongful eviction.
Court orders
#- 1.A declaration that the land shaded in the map annexed to the plaint forming part of land parcel No. SOUTH THARAKA/TUNYAI 'B'/107 on the southern part is the property of Peter Muriungi Kaunga (deceased) and should be registered as such by the District Land Registrar Meru South District forthwith
- 2.An order directed to the Land Registrar and the District Surveyor Meru South District to visit land parcel No. SOUTH THARAKA/TUNYAI 'B'/107 and to subdivide the land guided by the map annexed to the plaint, curve out the southern part (bordering the public road) and issue a title thereto in the names of Peter Muriungi Kaunga (deceased)
- 3.An order of permanent injunction restraining the 1st defendant, his agents, purported buyers, servants, employees, family members and whomsoever acting on his behalf from dealing with the land to be registered in the names of Peter Muriungi Kaunga (deceased)
- 4.Costs awarded to the plaintiff
- Jurisdiction invoked
- Original civil jurisdiction over land claims; rectification powers under Sections 26(1) and 80 of the Land Registration Act, 2012 (Cap. 300 referred to as the prior Registered Land Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lucy Karauki Kirambia (suing as the legal representative of the estate of Peter Muriungi Kaunga (deceased) v Muthengi M’mwathi Muthigu & 2 others [2018] KEELC 494 (KLR)", Case Analysis (2018). Not stated in the judgment (Tharaka Nithi ELC suit, amended plaint dated 3rd November 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/494/eng@2018-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.