Bertha Wanjiru Mweri & another v Samuel Njoroge Mwangi & 5 others [2018] KEELC 4892 (KLR)
The bottom line
#A Kenyan court protected registered landowners, ruling that beneficiaries of a deceased's estate cannot validly sell inherited land without a grant of probate.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants established a prima facie case for interlocutory injunction
Yes - registered certificates of lease made their title prima facie indefeasible, shifting the burden to the Respondents to show the title is challengeable
Applying the Giella v Cassman Brown tests and the Mrao definition of a prima facie case, the court found the Applicants held certificates of lease for the suit parcels. Section 26 of the Land Registration Act obliged the court to treat the certificates as conclusive evidence of proprietorship. At interlocutory stage the validity of title could not be finally determined, but proof of duly registered certificates, on their face properly acquired, was sufficient to establish a prima facie case.
Whether the Applicants would suffer irreparable harm absent an injunction
Yes - the interested parties had sold part of the inherited parcels to the Respondents without registration, and the Applicants' beneficial interest was capable of being preserved by interlocutory injunction
The court noted sale agreements showed the interested parties sold part of the inherited land to the Respondents despite not being registered proprietors. This substantiated the Applicants' apprehension of irreparable harm, including cutting down of trees and wanton destruction. The court held the Applicants' beneficial interest was capable of being preserved and/or protected by an interlocutory injunction pending trial.
Whether beneficiaries can deal with or pass interest in a deceased's unregistered estate property
No - only personal representatives holding a grant, under section 79 of the Law of Succession Act, may deal with estate property; beneficiaries have no power to pass interest to third parties
The court reasoned that although the 1st and 2nd interested parties were beneficiaries of the deceased's estate, section 79 of the Law of Succession Act vests power to deal with estate property only in personal representatives to whom a grant has been issued, in the manner prescribed by law. Consequently, the beneficiaries had no power to pass interest in the suit parcels to the Respondents by way of sale.
Legal principles established
#- A certificate of title/lease is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme
- Under section 79 of the Law of Succession Act, only personal representatives to whom a grant has been issued have power to deal with a deceased's property; beneficiaries cannot pass valid interest
- Proof of duly registered certificates of title, on their face properly acquired, suffices at interlocutory stage to establish a prima facie case, shifting the burden to the challenger
Court orders
#- 1.Grant of the order of injunction sought in the Notice of Motion dated 14th February 2018, injuncting the Defendants from dealing with or interfering with the suit lands pending determination of the suit
- 2.Costs of the application to the Plaintiff/Applicants
- 3.Parties directed to comply with Order 11 of the Civil Procedure Rules within 30 days so the matter can be set down for hearing
- Jurisdiction invoked
- Not stated in the judgment; the court exercised original jurisdiction over land disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bertha Wanjiru Mweri & another v Samuel Njoroge Mwangi & 5 others [2018] KEELC 4892 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4892/eng@2018-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.