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ELCPartially AllowedNot stated in the judgment text provided· [2019] KEELC 744 (KLR)

Stephen Kahugu Kinyanjui (suing as the administrator of the Estate of Ruth Wamwae Kiyanjui & 2 others v Johnson Kigundu & 2 others [2019] KEELC 744 (KLR)

Environment and Land Court
19 November 2019
2,609 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled fraudulently obtained land titles, ruling that a deceased person's land share can only be transferred through proper succession procedures.

What this practically means

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Executive summary

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The plaintiffs, administrators and a beneficiary of the estates of two deceased purchasers, sued over Land Title Nairobi/Block 110/309 in Thome Estate, Nairobi, acquired through Share Certificate No 463 from Thome Farmers No 1 Limited. The property was registered in 1991 in the joint names of Ruth Wamwae Kinyanjui and Hannah Gathoni Githegi. The plaintiffs alleged that after Hannah's death in 1984, fraudulent entries in the parcel register transferred the property to the 2nd defendant in 1997 and then to the 1st defendant in 2002, facts allegedly discovered only in 2017. They sought declarations of ownership and of fraud, permanent and mandatory injunctions, and rectification of the register. The 1st and 2nd defendants did not enter appearance or file defences. The 3rd defendant, the Land Registrar, denied any wrongdoing, arguing the plaintiffs had not discharged their burden of proof against her. The court found, on a balance of probabilities, that the 1997 transfer was illegal because Hannah's interest could only be conveyed by personal representatives holding a grant under Section 45(1) of the Law of Succession Act, and that the 2nd defendant had no legitimate title to pass, making the conveyance to the 1st defendant part of a corrupt scheme. However, the plaintiffs failed against the 3rd defendant, there being no evidence the Registrar knew or could have known the documents were forgeries. The court declined to declare the plaintiffs personally the legal owners, holding the property belongs to the two estates in equal shares and only succession courts can vest shares in heirs, and rejected adverse possession as unavailable against void fraudulent titles. Declarations of nullity, a permanent injunction against the 1st defendant, a mandatory injunction for rectification of the register, and costs against the 1st and 2nd defendants were granted on 19 November 2019.

Key legal issues

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01

Fraud and corrupt scheme against the 1st and 2nd defendants

Holding

Proved on a balance of probabilities; the transfer of a deceased co-owner's share without a grant was illegal and the conveyance to the 1st defendant was part of a corrupt scheme

Reasoning

The parcel register showed the property registered in 1991 in the joint names of the two deceased purchasers. The 1997 transfer entry was made long after Hannah Gathoni Githegi died in 1984, with no grant of representation. Section 45(1) of the Law of Succession Act bars such dealing. The 2nd defendant therefore held no legitimate title, and the 2002 conveyance to the 1st defendant was a forgery passed within a corrupt scheme.

p. 3
02

Liability of the 3rd defendant (Land Registrar)

Holding

Not proved; no evidence the Registrar knew or had reasonable opportunity to know the documents were forgeries

Reasoning

The Registrar registers entries based on documents presented. The plaintiffs tendered no evidence of wrongdoing, fault or collusion by the Land Registrar, and the court declined to hold her liable for the impugned transfers, dismissing the case against her while still ordering rectification as a statutory function.

p. 3
03

Entitlement to the prayers sought

Holding

Most prayers granted, but the plaintiffs were not declared legal owners in their personal capacities; the property vests in the two estates

Reasoning

Although the fraudulent titles were nullified, the court held the suit property belongs to the estates of the two deceased purchasers, and only succession courts can distribute the shares to heirs. Adverse possession was unavailable against void fraudulent titles. The remaining prayers aligned with the court's findings and were granted.

p. 3

Legal principles established

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  • The interest of a deceased joint proprietor in land can only be legally transferred by her personal representatives holding a grant of representation
  • A fraudulent title is void and confers no legitimate title capable of being conveyed to a subsequent transferee
  • A claim for adverse possession cannot stand against a fraudulently procured and void title

Court orders

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  1. 1.Declared that Land Title Nairobi/Block 110/309 belongs to the Estate of Ruth Wamwae Kinyanjui alias Ruth Wamae alias Wamae Kinyanjui and the Estate of Hannah Gathoni Githegi, in equal shares
  2. 2.Declared that the purported transfer of the property to the 2nd defendant was illegal, fraudulent, unprocedural, out of a corrupt scheme, and is void
  3. 3.Declared that the 2nd defendant could not pass a good title to the suit property to the 1st defendant
  4. 4.Permanent injunction issued against the 1st defendant, his agents, employees or persons claiming on his behalf or under his instructions, from entering, remaining in, charging, transferring, leasing or otherwise disposing of or developing the suit property
  5. 5.Mandatory injunction directing the 3rd defendant to cancel any title issued to the 1st and 2nd defendants and rectify the land register to cancel the transfers registered in favour of the 2nd and 1st defendants
  6. 6.The 1st and 2nd defendants shall bear costs of this suit

Authorities

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Legislation

  • Law of Succession ActSection 45(1)
  • Land Registration Act 2012Section 26(1)(b)
  • Evidence ActSections 107 and 109

Cases cited (5)

  • The Matter of the Estate of Veronica Njoki Wakagoto (Deceased)
    [2013] eKLR
  • Elijah Makeri Nyangwara v Stephen Mungai Njuguna & Another
    (2013) eKLR
  • Karugi & Another v Kabiya & 3 Others
    (1987) KLR 347
  • Arthi Highway Developers Limited v West End Butchery Limited & 6 Others
    (2015) eKLR
  • Charles Karathe Kiarie & 2 Others v Administrators of the Estate of John Wallace Mathare (Deceaed) & 5 Others
    (2013) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (not expressly cited in the judgment text)

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, "Stephen Kahugu Kinyanjui (suing as the administrator of the Estate of Ruth Wamwae Kiyanjui & 2 others v Johnson Kigundu & 2 others [2019] KEELC 744 (KLR)", Case Analysis (2019). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/744/eng@2019-11-19

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