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ELCPartially AllowedELC Case No. 241 of 2017· [2018] KEELC 2842 (KLR)

John Njuguna Kimunya v Teresia Wacuka Kimunya & another [2018] KEELC 2842 (KLR)

Environment and Land Court
19 June 2018
3,150 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, John Njuguna Kimunya (since deceased and substituted by his son James Gathu Njuguna as legal representative), sued his mother/grandmother, the 1st Defendant, and the 2nd Defendant, a purchaser, over land parcel Ndumberi/Riabai/184. The plaintiff alleged that the 1st Defendant, having obtained Letters of Administration and a confirmed grant over the estate of her late husband, refused to distribute the land to the beneficiaries, instead subdividing it into Ndumberi/Riabai/4089 and 4090 and selling 4089 to the 2nd Defendant without the beneficiaries' consent. The plaintiff sought a permanent injunction, a declaration that the subdivision was null and void, cancellation of the resultant titles, and an order for subdivision to the rightful heirs. The defendants' defences were expunged from the record after the court found no proof of service of summons, and the suit proceeded undefended and ex parte. The court noted that the High Court in Succession Cause No. 251 of 2010 had revoked the Letters of Administration and the Certificate of Confirmation of Grant issued to the 1st Defendant for failure to distribute the estate, a judgment not shown to have been appealed, set aside or stayed. It held that the 1st Defendant's registration derived solely from her position as administrator, so with revocation the subdivision, transfer and registrations were null and void. Although the defendants were registered proprietors, indefeasibility under the repealed Registered Land Act and the Land Registration Act, 2012 does not protect titles acquired irregularly or unprocedurally, whether or not the purchaser was party to the irregularity. Relying on Funzi Island Development Ltd and Macfoy, the court found this a proper case for rectification. Judgment was entered for the plaintiff on prayers (a) and (b), the register was directed to be rectified by cancelling the two titles and reverting the land to the deceased's name, and costs were awarded to the plaintiff. Prayer (c) was not granted; beneficiaries were left to file a fresh succession cause.

Key legal issues

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01

Effect of revocation of Letters of Administration on subsequent dealings with estate land

Holding

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

Reasoning

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.

p. 3
02

Indefeasibility of title under the Registered Land Act and the Land Registration Act

Holding

Although the defendants were registered proprietors, their titles could be challenged because the registrations were irregular and unprocedural

Reasoning

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.

p. 4
03

Rectification of the register

Holding

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

Reasoning

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.

p. 4
04

Proof of an undefended suit

Holding

The Plaintiff proved his case on a balance of probabilities notwithstanding that the suit proceeded undefended

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.Costs of the suit awarded to the Plaintiff

Authorities

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Legislation

  • Registered Land Act (Cap 300) (now repealed)Section 27
  • Registered Land Act (Cap 300) (now repealed)Section 28
  • Registered Land Act (Cap 300) (now repealed)Section 143
  • Land Registration Act, 2012Section 26(1)(a) & (b)
  • Land Registration Act, 2012Section 80(1)

Cases cited (2)

  • Funzi Island Development Limited & Others vs County Council of Kwale
    Civil Appeal No. 252 of 2005 (Mombasa)
  • Macfoy vs United Africa Co. Ltd
    1961 3 All ER 1169
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land

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, "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.