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ELCPartially AllowedELC Case No 241 of 2017· [2018] KEELC 4294 (KLR)

Margaret Wanjiru Kinyanjui v John Mburu Kinyanjui [2018] KEELC 4294 (KLR)

Environment and Land Court
31 January 2018
2,282 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cancelled a son's title to his late mother's land because he subdivided and registered it without letters of administration, fining him for intermeddling.

What this practically means

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Executive summary

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The plaintiff, a daughter of the late Peris Wambui Kinyanjui, sued as legal representative of the deceased's estate, seeking a declaration that the estate was the legitimate owner of parcel LR No. Nyandarua/Olkalaou South 2586, cancellation of the defendant's registration and reversion of the land to the deceased. The deceased owned parcel Nyandarua/Olkalaou South 1206 (12 acres), which the family had agreed would be subdivided into four 3-acre portions among her four sons. Before any succession cause was filed, the defendant, one of the sons, subdivided the land on 1st November 2013 into parcels 2574-2587 and had himself registered as proprietor of one of the resultant parcels on 31st July 2014, without a grant of letters of administration. The matter proceeded ex-parte under Order 12 rule 2 of the Civil Procedure Rules after the defendant failed to comply with Order 11 and did not appear on the hearing date, leaving the plaintiff's evidence uncontroverted. Framing four issues, the court held that the suit land formed part of the deceased's estate; that the subdivision and registration were fraudulent and illegal since no confirmed grant existed, contrary to section 55(1) of the Law of Succession Act; that the defendant's title fell within the fraud and illegality exceptions of sections 26(1) and 80(1) of the Land Registration Act; and that the defendant's acts constituted intermeddling under section 45(1) of the Law of Succession Act. Judgment was entered for the plaintiff: a declaration that the deceased was the registered proprietor of the original parcel, a declaration that the subdivision and registration were null and void, cancellation of the title and restoration of the map to the parcel's status as at 27th April 1999, a fine of Kshs. 9,000/- on the defendant for intermeddling with five months' imprisonment in default, and costs as prayed.

Key legal issues

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01

Whether the suit land formed part of the estate of the deceased

Holding

Yes; parcel Nyandarua/Olkalaou South 1206 was registered in the name of the deceased Peris Kinyanjui, who collected the title on 27th April 1999 and died on 24th November 2005.

Reasoning

The plaintiff produced a green card (exhibit 2) showing registration in the deceased's name and a death certificate (exhibit 1). The defendant, having failed to comply with Order 11 and being absent at the ex-parte hearing, adduced no controverting evidence, so the plaintiff's evidence stood uncontroverted.

p. 2
02

Whether the subdivision and registration of the resultant parcels to the defendant was fraudulently and illegally done

Holding

Yes; the subdivision and registration were done without consent of the family and without any confirmed grant of letters of administration, and were therefore fraudulent and illegal.

Reasoning

The defendant subdivided the deceased's land on 1st November 2013 into parcels 2574-2587 and had himself registered as proprietor of parcel 2587 on 31st July 2014, before any succession cause or confirmed grant. Under section 55(1) of the Law of Succession Act no distribution of capital assets is permitted before confirmation of a grant, and under sections 26(1) and 80(1) of the Land Registration Act a title acquired illegally or through fraud is challengeable and may be rectified.

p. 3
03

Whether the defendant intermeddled with the property of the deceased

Holding

Yes; the defendant's dealings amounted to intermeddling with the estate of the deceased contrary to section 45(1) of the Law of Succession Act.

Reasoning

The defendant took possession of, subdivided and disposed of the deceased's free property before any grant of representation existed. Section 45(1) prohibits such dealings except where expressly authorized by the Act or by a grant. The court found the acts amounted to intermeddling and, under section 45(2)(a), fined the defendant Kshs. 9,000/- with five months imprisonment in default.

p. 4
04

Whether the plaintiff is entitled to the prayers sought

Holding

Yes; the plaintiff proved her case on a balance of probabilities and the suit was allowed with costs.

Reasoning

Proceeding ex-parte under Order 12 rule 2 of the Civil Procedure Rules, the plaintiff's uncontroverted evidence and exhibits established ownership of the original parcel by the deceased, the fraudulent subdivision and registration, and the absence of any grant. The court granted a declaration of ownership, declared the subdivision null and void, ordered cancellation of the title and restoration of the original parcel, and imposed a sanction for intermeddling.

p. 4

Legal principles established

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  • Once a proprietor of land has died, the estate can only be administered by administrators who must obtain Letters of Administration, and only after confirmation of the grant are they seized with legal authority to deal with capital assets of the deceased.
  • A title acquired illegally, unprocedurally or through a corrupt scheme is not protected by the indefeasibility of title under the Land Registration Act and may be rectified by court order.
  • Dealing with a deceased person's free property without a grant of representation amounts to intermeddling contrary to section 45(1) of the Law of Succession Act, punishable under section 45(2)(a).

Court orders

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  1. 1.A declaration that Peris Wambui Kinyanjui (Deceased) is the registered proprietor of land parcel known as No. LR No. Nyandarua/Olkalaou South 1206.
  2. 2.A declaration that the subdivision of Nyandarua/Olkalaou South 1206 into portions No 2574-2587 and the subsequent registration of Nyandarua/Olkalaou South 2587 in the Defendant's name are fraudulent, illegal and therefore null and void.
  3. 3.An order of cancellation of title Nyandarua/Olkalaou South 2587 together with an order for the amendment of the map to restore Land Parcel Nyandarua/Olkalaou South 1206 to its status as at 27th April 1999.
  4. 4.Pursuant to Section 45(2)(a) of the Law of Succession Act, the defendant is fined a sum of Kshs. 9,000/- in default of payment to serve five (5) months imprisonment.
  5. 5.Costs of the suit granted to the plaintiff as prayed.

Authorities

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Legislation

  • Civil Procedure RulesOrder 11
  • Civil Procedure RulesOrder 12, rule 2
  • Law of Succession Act, Chapter 160Section 55(1)
  • Law of Succession ActSection 45(1)
  • Law of Succession ActSection 45(2)(a)
  • Law of Succession ActSection 71
  • Land Registration Act, 2012Section 26(1)
  • Land Registration Act, 2012Section 80(1)

Cases cited (1)

  • Paul Muira and Another -vs- Jane Kendi Ikinyua and 2 others
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act; suit commenced by plaint dated 27th April 2016

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, "Margaret Wanjiru Kinyanjui v John Mburu Kinyanjui [2018] KEELC 4294 (KLR)", Case Analysis (2018). ELC Case No 241 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4294/eng@2018-01-31

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