John Njuguna Kimunya v Teresia Wacuka Kimunya & another [2018] KEELC 2842 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Effect of revocation of Letters of Administration on subsequent dealings with estate land
The subdivision, transfer and registration of LR. Nos. Ndumberi/Riabai/4089 and 4090 were null and void because they followed from a revoked Grant and Certificate of Confirmation of Grant
The 1st Defendant was registered as proprietor solely as legal representative of the estate. When the High Court in Succession Cause No. 251 of 2010 revoked the Letters of Administration and Confirmation of Grant for failure to distribute the estate, her title basis fell away. The suit property reverted to the deceased's name, and the subsequent subdivision and transfer were derivative of a void registration. No appeal, stay or setting aside of that judgment was shown.
Indefeasibility of title under the Registered Land Act and the Land Registration Act
Although the defendants were registered proprietors, their titles could be challenged because the registrations were irregular and unprocedural
Sections 27 and 28 of the repealed Registered Land Act (Cap 300) confer absolute ownership and protection on registered proprietors, and Section 26(1) of the Land Registration Act 2012 makes certificates prima facie evidence of indefeasible ownership. However, both statutes carve out exceptions for fraud, misrepresentation, illegality, irregularity or unprocedural acquisition. The registration flowed from a revoked grant, making it irregular; the 2nd Defendant's lack of knowledge of the irregularity does not cure the defect.
Rectification of the register
This is a proper case for rectification under Section 80(1) of the Land Registration Act; the resultant titles are to be cancelled and the register reverted to the original parcel in the deceased's name
Section 80(1) of the Land Registration Act (mirroring Section 143 of Cap 300) permits the court to cancel or amend any registration obtained by fraud or mistake. Since the registrations were void ab initio following revocation of the grant, cancellation is appropriate. The beneficiaries may then pursue distribution through a fresh succession cause in the Family Division.
Proof of an undefended suit
The Plaintiff proved his case on a balance of probabilities notwithstanding that the suit proceeded undefended
The defendants' defences were expunged after the court found no evidence of service of summons, and they never re-filed defences despite being given an opportunity. The suit proceeded ex parte after service of hearing notice. The court nonetheless examined the evidence, including the judgment in Succession Cause No. 251 of 2010 revoking the grant, and found the plaintiff's case proved on the balance of probabilities.
Legal principles established
#- A registered proprietor does not acquire an indefeasible title where the registration was obtained irregularly or unprocedurally, even if the purchaser was not party to the irregularity
- An act that is void is a nullity in law and requires no court order to set it aside
- The court may order rectification of the register where a registration was obtained by fraud or mistake
Court orders
#- 1.Judgment entered for the Plaintiff against the Defendants jointly and severally in terms of prayers (a) and (b) of the Plaint dated 2nd March 2010, being a permanent injunction barring alienation of the suit properties and a declaration that the subdivision of LR. No. Ndumberi/Riabai/184 was null and void with cancellation of the resultant titles
- 2.The Land Registrar, Kiambu directed to rectify the Register by cancelling LR. No. Ndumberi/Riabai/4089 and Ndumberi/Riabai/4090 and reverting to LR. No. Ndumberi/Riabai/184 in the name of Kimunya Mbutu Gichiru (deceased)
- 3.Liberty for the beneficiaries of the estate to file a Succession Cause for distribution of the deceased's assets including the suit property
- 4.Costs of the suit awarded to the Plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Njuguna Kimunya v Teresia Wacuka Kimunya & another [2018] KEELC 2842 (KLR)", Case Analysis (2018). ELC Case No. 241 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2842/eng@2018-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.