Ernest Sifuna Simwero (Sued asAdministrator of the estate of Esteri Oteche Waburiri(Deceased)) v Jared Mwimali Mukwandala [2019] KEELC 320 (KLR)
The bottom line
#A Kenyan court cancelled a land transfer done without succession after the owner's death, holding that even decades-old titles can be undone where fraud is proved.
What this practically means
#Executive summary
#Key legal issues
#Indefeasibility of title under the Land Registration Act and its exceptions
The certificate of title is prima facie evidence of absolute and indefeasible ownership, but may be challenged on the ground of fraud or misrepresentation to which the proprietor is a party, or where acquired illegally, unprocedurally or through a corrupt scheme.
The court applied Sections 24(a) and 26(1) of the Land Registration Act, and followed Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna & Another, holding that title in the hands of an innocent third party can still be impugned where it is proved the title was obtained illegally, unprocedurally or through a corrupt scheme. The defendant's own pleading showed the transfer was procured without letters of administration.
Limitation of actions in a claim for recovery of land founded on fraud
The suit, though brought more than twelve years after the 1975 transfer, is not time barred because it is anchored on fraud, and under Section 26 of the Limitation of Actions Act limitation does not begin to run until the fraud is or could with reasonable diligence be discovered.
The court considered Sections 7 and 8 of the Limitation of Actions Act and Section 26's proviso, relying on Ishmael Ithongo v Geoffrey Ithongo Thindiu and Justus Tureti Obara v Peter Koipeitai Nengisoi, which hold that where a claim for recovery of land is based on fraud, the period of limitation does not begin to run until discovery of the fraud, and such claims should proceed to hearing.
Fraudulent transfer of a deceased person's land without succession proceedings
The transfer of the suit land to the defendant long after the registered proprietor died, and without undertaking succession proceedings, was fraudulent, and the plaintiff proved his case on a balance of probabilities.
The registered proprietor died in 1969 yet the transfer and registration to the defendant occurred on 25 October 1975 without letters of administration. The defendant's claim of good faith failed because ignorance of the law is no defence. On a balance of probabilities the plaintiff established fraud sufficient to displace the defendant's title.
Legal principles established
#- A title acquired by transfer of land of a deceased registered proprietor undertaken without succession proceedings is fraudulent and may be impeached notwithstanding the indefeasibility of title under the Land Registration Act.
- Where an action for recovery of land is based on fraud, limitation under Section 7 does not begin to run until discovery of the fraud, by virtue of Section 26 of the Limitation of Actions Act.
- Ignorance of the law is no defence.
Court orders
#- 1.Cancellation of subdivision, transfer and registration of the defendant as the owner of land parcel registration number East Wanga/Malaha/189
- 2.Restoration of land parcel registration number East Wanga/Malaha/189 to be reverted back to its original owner Esteri Oteche Waburiri to pave way for succession proceedings
- 3.No orders as to costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land (Land Registration Act); specific provision not cited in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ernest Sifuna Simwero (Sued asAdministrator of the estate of Esteri Oteche Waburiri(Deceased)) v Jared Mwimali Mukwandala [2019] KEELC 320 (KLR)", Case Analysis (2019). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/320/eng@2019-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.