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ELCDismissedE.L.C. Case No. 137 of 2014 (Formerly Embu ELC No. 51 of 2007)· [2018] KEELC 1338 (KLR)

Vincent Nthiga & another v Timothy Mwaniki Njagi [2018] KEELC 1338 (KLR)

Environment and Land Court of Kenya
11 October 2018
YAY.M. Angima
1,908 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court ruled the registered owner keeps the land because the family's informal 'will' was invalid and no fraud was proven.

What this practically means

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Executive summary

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The Plaintiffs, siblings of the Defendant, sued for an order vesting ¾ of an acre out of Title No. Kagaari/Kanja/5921 upon them. They pleaded that their late mother, Loise Rwamba Njeru, had been misled into transferring the suit property to the Defendant and had later, by an agreement dated 12th August 2006 made at a family meeting, directed that the property be shared among her children. The Defendant denied the claim, asserting that the mother had transferred the property to him as absolute owner in appreciation of his care for her in her old age, that the Plaintiffs had already received their shares, and that the family agreement was forged. The court framed five issues. On the first, it found no particulars or evidence of fraud, mistake or misrepresentation. On the second, it accepted that the family meeting took place and that the original title deed was handed to PW2, and rejected the forgery allegation, but held the document was not a valid will because it was signed by the intended beneficiaries, and in any event the property had been transferred inter vivos before its making. The court further held that distribution of a testate estate lies with the succession court, not the Environment and Land Court. It therefore found the Defendant to be the absolute proprietor, and the Plaintiffs, having failed to prove their case on a balance of probabilities, were not entitled to the reliefs sought. The suit was dismissed with each party bearing his/her own costs, the court noting that the parties were siblings.

Key legal issues

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01

Whether the deceased was misled into transferring the suit property

Holding

No evidence established that the deceased was misled into transferring the property

Reasoning

The court noted that although fraud or mistake was pleaded in paragraph 5 of the plaint, no particulars were given as to how, when or by whom the deceased was misled. None of the Plaintiffs' witnesses led any evidence on the issue in witness statements or oral testimony, so the plea failed for want of proof.

p. 2
02

Whether the agreement of 12th August 2006 constituted a valid will

Holding

It was not a valid will; it was signed by the intended beneficiaries, and the property was no longer the deceased's

Reasoning

The exhibit was styled as an agreement signed by family members and three witnesses, including DW2 and DW3. The court accepted it was genuinely signed and rejected the forgery claim, but held that a will signed by beneficiaries without independent attestation is invalid, and in any event the land had been transferred inter vivos before the document was made.

p. 2
03

Whether the Defendant holds the suit property in trust for the Plaintiffs

Holding

The Defendant is the absolute proprietor; the deceased's interest terminated on the inter vivos transfer

Reasoning

Having found no fraud or mistake in the transfer and no valid will, the rights of a registered proprietor under the Registered Land Act attached immediately upon registration in 2006. The title deed was issued on 28th June 2006, long before the purported will of 12th August 2006. The deceased could not later change her mind and dispose of the property by will.

p. 3

Legal principles established

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  • A valid will must be executed by the testator and attested by witnesses who are not beneficiaries; where beneficiaries sign, their signatures must be further attested by competent and independent witnesses
  • A testator can only dispose by will property that he or she legally owns; property transferred inter vivos before the will is made cannot be the subject of the will
  • Distribution of a testate estate falls within the jurisdiction of the succession court, not the Environment and Land Court
  • In the absence of proof of fraud, the rights of a registered proprietor attach immediately upon registration
  • Costs follow the event unless the court for good reason directs otherwise

Court orders

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  1. 1.The Plaintiffs' suit is dismissed
  2. 2.Each party shall bear his/her own costs

Authorities

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Legislation

  • Law of Succession Actsection 13(2)
  • Registered Land Act (now repealed)null

Cases cited (1)

  • Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act in respect of title to land; court declined to exercise succession jurisdiction under the Law of Succession Act (Cap 160)

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, "Vincent Nthiga & another v Timothy Mwaniki Njagi [2018] KEELC 1338 (KLR)", Case Analysis (2018). E.L.C. Case No. 137 of 2014 (Formerly Embu ELC No. 51 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1338/eng@2018-10-11

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