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ELCDismissedELC Case No. 16 of 2007· [2019] KEELC 408 (KLR)

George Mwongela Munyeka v Joyce Mbenyi Mbilo & 5 others [2019] KEELC 408 (KLR)

Environment & Land Court
28 November 2019
MGMbogo C. G.
5,934 words in judgment
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The bottom line

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The Environment & Land Court dismissed a man's claim that his late brother's widow fraudulently registered herself as co-owner of family land he could not legally claim.

What this practically means

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Executive summary

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The Plaintiff sued the Defendants, led by the 1st Defendant (widow of his late brother Mbilo), seeking a declaration that her registration as co-owner of parcel No. 257 Mweini Settlement Scheme was fraudulent, illegal and void, and rectification of the register so the land be registered in his name with his two wives. He claimed the Defendants were mere licensees permitted to settle temporarily and to bury their dead under a 1989 family agreement. The Defendants denied the claim, asserting the land was jointly acquired by Mbilo and the Plaintiff, that all parties were squatters on unalienated government land before the 2006 adjudication, and that the Plaintiff voluntarily participated in the adjudication and never objected to the registrations. After a hearing before several judges of the Environment and Land Court at Machakos (Makueni), Mbogo CG, J dismissed the suit. The court held the suit property was unalienated government land until 2006; the Plaintiff therefore had no authority to licence anyone onto it, rendering the 1989 agreement of no probative value. On fraud, the court found the Plaintiff was present during adjudication, directed the registration of his wives, and did not object to the 1st Defendant's registration; no fraud or misrepresentation by her or the adjudication officers was proved to the required standard. The suit was dismissed with costs to the Defendants.

Key legal issues

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01

Whether the Plaintiff could grant a licence over the suit property

Holding

The Plaintiff could not grant a licence because the suit property was unalienated government land until adjudication in 2006, so the 1989 agreement was of no probative value

Reasoning

The court found on the evidence that the land was unalienated government land under the (repealed) Government Land Act until 2006. The Plaintiff himself admitted he was arrested and imprisoned for trespass in 1964. Having no legal right over the land, he had no authority to licence his brother's occupation, and the 1989 burial agreement conferring no claim of ownership was invalid and of no probative value.

p. 6
02

Whether fraud was proved to warrant rectification of the register

Holding

No fraud was proved; the Plaintiff was present during adjudication and did not object to the 1st Defendant's registration

Reasoning

The court found that the Plaintiff was present when adjudication commenced and it was he who asked the officers to register his two wives. Neither he nor his wives objected when the 1st Defendant was registered. There was no evidence that the 1st Defendant misrepresented herself to the registrar or that the adjudication officers committed fraud, which explained why land officials refused to delete her name from the register.

p. 6

Legal principles established

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  • A party cannot licence occupation of unalienated government land as no proprietary interest subsists to pass
  • Allegations of fraud must be strictly proved to a standard higher than a balance of probabilities

Court orders

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  1. 1.The Plaintiff's suit against the Defendants is dismissed with costs to the Defendants

Authorities

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Legislation

  • The Government Land Act (now repealed)definition of 'unalienated Government land'; Part VI, Section 40
  • Land Registration Act No. 3 of 2012Section 80

Cases cited (2)

  • Associated hotels of India Ltd vs. R. N. Kapoor
    (1959) A.R 1262 1960 SCR (1) 368
  • Koinange & 13 others vs. Koinange
    (1986) KLR 23
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit 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, "George Mwongela Munyeka v Joyce Mbenyi Mbilo & 5 others [2019] KEELC 408 (KLR)", Case Analysis (2019). ELC Case No. 16 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/408/eng@2019-11-28

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