Caroline Nyambura Thiongo v Alice Wanjiku John & 2 others [2018] KEELC 1878 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Limitation
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
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.
Fraud
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
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.
Rectification of title
The court exercised its powers under section 80 of the Land Registration Act to rectify the title to include all four heirs
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.
Legal principles established
#- 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
#- 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.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.The 2nd and 3rd Defendants jointly and severally to pay the Plaintiff's costs of the suit
- Jurisdiction invoked
- Original jurisdiction; powers under section 80 of the Land Registration Act, 2012 to rectify the register
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.