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ELCDismissedCase No 181 of 2013· [2019] KEELC 1360 (KLR)

Paul Nyangaresi Mokua (Suing as a legal representative and administrator of the estate of Mokuol Olisanda) v Jones Mokaya [2019] KEELC 1360 (KLR)

Environment and Land Court
8 October 2019
JMJ. M. MutungiJOJ Onyango
4,144 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a son's challenge to his late father's land transfer because he could not prove fraud or a trust with evidence.

What this practically means

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Executive summary

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The plaintiff, son and legal representative of the late Mokuol Olisanda, sued the defendant claiming that the transfer to the defendant of land parcel Central Kitutu/Daraja Mbili/1791 on 15th April 2002 for Kshs. 60,000/= was fraudulent because the deceased, then aged about 81-90, lacked capacity. He sought a declaration that the sale was null and void, cancellation and reversion of the title, alternative damages, a permanent injunction, a declaration of trust, and costs. The defendant denied fraud, asserting that in 1993 he exchanged parcel 1791 (valued at Kshs. 300,000/=) with his parcel Matutu Settlement Scheme/396 (purchased for Kshs. 240,000/=) and paid the deceased the Kshs. 60,000/= difference, with parcel 396 transferred directly to the plaintiff, who built and lived there. The court framed five issues. It held the suit was filed within the twelve-year limitation period. On fraud, it found the plaintiff failed to discharge the evidentiary burden under Sections 107 and 109 of the Evidence Act: there was no proof of mental infirmity, the agreement of 6th March 1993 was witnessed by the plaintiff's brother, the 2013 valuation was irrelevant to a 1993 transaction, and the plaintiff's earlier trespass compensation payment acknowledged the defendant's ownership. The defendant was held to be a lawful bona fide proprietor whose indefeasible title under Sections 24 and 26 of the Land Registration Act could not be challenged. On trust, applying the resulting trust principles in Twalib Hatayan and Salesio M'itonga, the court found no trust since the agreement covered the whole parcel and the court cannot rewrite a contract absent coercion, fraud or undue influence. The suit was dismissed with costs to the defendant.

Key legal issues

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01

Limitation of actions

Holding

The suit, filed on 16th April 2013 within 12 years of the April 2002 registration, was not statute-barred under Section 7 of the Limitation of Actions Act.

Reasoning

The defendant alluded to limitation. Section 7 bars actions to recover land after twelve years from accrual of the right of action. Assuming the cause of action accrued on the defendant's registration on 15th April 2002, the suit filed on 16th April 2013 fell within the twelve-year period.

p. 3
02

Fraud and indefeasibility of title

Holding

Fraud was not proved; the defendant was a lawful and bona fide proprietor whose title could not be challenged under Sections 24(a) and 26(1) of the Land Registration Act.

Reasoning

The plaintiff alleged forgery and lack of mental capacity of the deceased (aged 90). No medical or other evidence of infirmity was adduced; a witness to the agreement was the plaintiff's own brother; the 2013 valuation was irrelevant to a 1993 transaction; and the plaintiff's payment of trespass compensation showed acknowledgement of the defendant's ownership. The evidentiary burden under Sections 107 and 109 of the Evidence Act was not discharged.

p. 4
03

Resulting/overriding trust

Holding

No trust arose; the defendant did not hold the suit property in trust for the plaintiff.

Reasoning

Trusts are overriding interests under Section 28(b) of the Land Registration Act but must be proved by evidence. Having found a valid exchange agreement covering the entire parcel (0.22 Ha), the plaintiff could not show the deceased intended to sell only a portion. A resulting trust requires that the transferor did not intend to confer a beneficial interest, which was not demonstrated.

p. 5

Legal principles established

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  • Fraud must be proved by cogent evidence and cannot rest on mere allegation
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme
  • A trust is a question of fact and must be proved by credible evidence by the party claiming it
  • A court cannot rewrite a contract between parties absent coercion, fraud or undue influence

Court orders

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  1. 1.The plaintiff's suit is dismissed with costs to the defendant

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Land Registration ActSections 24(a), 24(1), 25, 26, 26(1), 28(b)
  • Evidence ActSections 107, 109

Cases cited (5)

  • Grace Wanjiru -vs- Gedion Githunguri and 5 Others
    Civil Appeal No. 202 of 2005 [2011] eKLR
  • Virani t/a Kisumu Beach Resort -vs- Phoenix of East Africa Assurance Company Ltd
    Civil Appeal No. 88 of 2002 [2004] 2 KLR
  • Twalib Hatayan and Anor -vs- Said Saggar Ahmed Al-Heidy and others
    [2015] eKLR
  • Salesio M'itonga versus M'ithara & 3 Others
    [2015] eKLR
  • Gichuki -vs- Gichuki
    Civil Appeal No. 21 of 1981
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land (not expressly cited in the judgment)

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, "Paul Nyangaresi Mokua (Suing as a legal representative and administrator of the estate of Mokuol Olisanda) v Jones Mokaya [2019] KEELC 1360 (KLR)", Case Analysis (2019). Case No 181 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1360/eng@2019-10-08

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