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ELCPartially AllowedHCCC Succession-related Suit filed 23/11/2016, amended 18/7/2018· [2018] KEELC 1878 (KLR)

Caroline Nyambura Thiongo v Alice Wanjiku John & 2 others [2018] KEELC 1878 (KLR)

Environment and Land Court
20 September 2018
3,882 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Murang'a court ruled that land registered against a succession court's orders must be returned to all four rightful heirs, 30 years later.

What this practically means

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Executive summary

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The Plaintiff, a daughter of the late John Stephen Thiongo, sued for a declaration that the registration of her mother and brother as absolute proprietors of LOC 14/GAKURWE/108 was fraudulent, contrary to the certificate of confirmation of grant in HCCC Succession Cause No. 194 of 1985, which directed the net estate be shared equally among four heirs, and for rectification of the register. The 1st Defendant admitted the error and supported inclusion of the two daughters. The 2nd Defendant opposed the suit as time barred, denied fraud, asserted a family agreement to exclude the sisters and invoked Article 40 constitutional protection of property. The 3rd Defendant (Public Trustee) attributed the registration to an error, explained it was done hurriedly to protect the land from intermeddling, and itself invited rectification under section 80 of the Land Registration Act. The Land Registrar's witness conceded the transfer was registered contrary to the grant. The court framed four issues: limitation, fraud, registration of all four heirs, and costs. It held the suit was not statute barred as limitation does not apply to trust property; found the registration fraudulent as a complete departure from the court order and the 2nd Defendant evasive, holding him and his mother constructive trustees; and rectified the title to include all four heirs. The court granted the declaration sought, ordered the Land Registrar to insert the Plaintiff's and Angela's names, and awarded costs against the 2nd and 3rd Defendants jointly and severally.

Key legal issues

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01

Limitation

Holding

The suit is not statute barred because the claim relates to trust property and a beneficiary's action is not subject to the Limitation of Actions Act periods

Reasoning

The 2nd Defendant argued the claim brought 30 years after the 1987 transfer was time barred and that the Plaintiff, an adult in 1987, had used the title for a visa application. The court held that limitation does not apply to trust property, citing section 20 of the Limitation of Actions Act which excepts actions by beneficiaries under a trust, including actions in respect of fraud or fraudulent breach of trust and recovery of trust property. Since the Defendants held the land beneficially for four heirs, the suit was not time barred.

p. 3
02

Fraud

Holding

The totality of the Defendants' actions was fraudulent because the land was registered absolutely to two heirs in complete departure from the court-ordered distribution to four heirs

Reasoning

The certificate of confirmation of grant directed that the suit land be shared equally among four heirs, but it was transmitted to the 1st and 2nd Defendants absolutely. The 1st Defendant admitted the error; the 2nd Defendant's claim of a family agreement to exclude the sisters was unsupported and contradicted the subsisting court order. The Land Registrar registered a transfer contrary to the grant, and the Public Trustee failed in its fiduciary duty to ensure compliance and to account to all beneficiaries.

p. 4
03

Rectification of title

Holding

The court exercised its powers under section 80 of the Land Registration Act to rectify the title to include all four heirs

Reasoning

The 3rd Defendant itself invited the court to rectify the register. Given the uncontradicted certificate of confirmation of grant naming four beneficiaries, the court found the register did not accord with the subsisting court order. The Land Registrar's own witness confirmed that the grant takes precedence over the RL7 transfer form and that registration of two heirs only was an error with the effect of disinheriting two heirs. Rectification to insert the omitted heirs was the just remedy.

p. 4

Legal principles established

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  • Limitation of time does not apply to actions by a beneficiary under a trust in respect of trust property
  • Registration of proprietors to the exclusion of beneficially entitled persons contrary to a court order makes them constructive trustees who cannot own the land absolutely
  • Registration done in contravention of a court order is fraudulent, whether the error was genuine, inadvertent or negligent

Court orders

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  1. 1.Declaration that the registration of the Defendants as proprietors of land parcel LOC 14/GAKURWE/108 was fraudulently done in contravention of the orders of the Court in HCCC Succession Cause No 194 of 1985 and that the title should be cancelled
  2. 2.Order directing the Land Registrar Murang'a to insert the names of the Plaintiff Caroline Nyambura Thiongo and Angela Elizabeth Thiongo in addition to those of the 1st and 2nd Defendants as owners of the suit property in accordance with the certificate of confirmation of grant dated 22/9/1986
  3. 3.The 2nd and 3rd Defendants jointly and severally to pay the Plaintiff's costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Law of Succession ActNot specified (life interest provisions referenced)
  • Limitation of Actions ActSection 20
  • Land Registration Act, 2012Section 80
  • Government Proceedings ActSection 13A
  • Government Proceedings rules on statutory noticeStatutory notice to sue

Cases cited (1)

  • Kenya Bus Service Limited & Another Vs the Minister for Transport & 2 Others
    (2012) EKLR
Jurisdiction invoked
Original jurisdiction; powers under section 80 of the Land Registration Act, 2012 to rectify the register

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, "Caroline Nyambura Thiongo v Alice Wanjiku John & 2 others [2018] KEELC 1878 (KLR)", Case Analysis (2018). HCCC Succession-related Suit filed 23/11/2016, amended 18/7/2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1878/eng@2018-09-20

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