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ELCAllowedELC Case (Kerugoya), plaint dated 17th August 2017· [2019] KEELC 1571 (KLR)

Esther Wamutira Karimi & 5 others v Lucy Karimi Miano & 4 others [2019] KEELC 1571 (KLR)

Environment and Land Court
20 September 2019
ECE.C. Cherono
1,185 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cancelled a land title that family members obtained fraudulently days after the owner died, and the land reverted to his estate.

What this practically means

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Executive summary

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By a plaint dated 17th August 2017, the plaintiffs, daughters of the late Stanley Karimi Miano, sought cancellation of the title issued to the 2nd, 3rd, 4th and 5th defendants (their brothers) over land parcel MUTIRA/KAGUYU/5314 so that the land could revert to their father's name for proper succession. The plaintiffs alleged that the deceased was registered as proprietor on 27th September 2013, died on 12th October 2013 of severe pneumonia/sepsis, and that the defendants thereafter caused the parcel to be registered in their names on 17th October 2013 through an unknown and fraudulent procedure, since the deceased was too ill to execute documents or attend the Land Control Board. The defendants filed a joint statement of defence denying the claim and the particulars of fraud, but neither they nor their advocate attended the hearing, and the matter proceeded ex parte, leaving the 2nd plaintiff's evidence unchallenged. The court found that the speed of the registration and transfer, so soon after the deceased's death and registration, raised more questions than answers, and adopted the reasoning in Elijah Makeri Nyangwara v Stephen Mungai Njuguna on the impeachability of titles obtained illegally, un-procedurally or through a corrupt scheme under Section 26(1)(b). The court held the defendants' title was procured by fraud and misrepresentation, cancelled it, ordered rectification of the register to revert the parcel to Stanley Karimi Miano, and awarded costs against the defendants jointly and severally.

Key legal issues

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01

Whether the defendants' title was procured by fraud

Holding

Yes - the title issued on 17/10/2013 was procured by fraud, un-procedurally and by misrepresentation, since the deceased was gravely ill and could not have executed the statutory documents

Reasoning

The death certificate showed the deceased died on 12/10/2013 of severe pneumonia/sepsis; the green card showed registration as proprietor on 27/9/2013, barely two weeks before death, and the transfer to the defendants was registered on 17/10/2013, five days after death. The unchallenged evidence of the 2nd plaintiff established that the deceased could not have attended the Land Control Board or executed documents. The speed of the transactions raised more questions than answers, and the defendants adduced no evidence to controvert the fraud allegations.

p. 2
02

Effect of undefended claim where allegations of fraud are uncontroverted

Holding

Evidence given unchallenged after defendants failed to attend hearing remains unchallenged and the court may act on it

Reasoning

The defendants and their advocate were served with hearing date taken by consent but failed to attend court, so the case proceeded ex parte. The 2nd plaintiff's testimony and documents (death certificate, limited grant ad colligenda bona, green card and search certificate) were not controverted. The court accepted the unchallenged evidence and found the plaintiffs had proved their case to the required standard.

Legal principles established

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  • A title obtained illegally, un-procedurally or through a corrupt scheme is impeachable under Section 26(1)(b) even where the title holder was not party to the vitiating factors

Court orders

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  1. 1.Cancellation of the title of the defendants issued on 17/10/2013 in respect of land parcel No. MUTIRA/KAGUYU/5314 as improperly procured
  2. 2.Rectification of the register of land parcel No. MUTIRA/KAGUYU/5314 to remove the entries in favour of the four defendants and revert the title to Stanley Karimi Miano
  3. 3.The defendants to pay the costs of the suit jointly and severally

Authorities

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Legislation

  • Land Registration ActSection 26(1)(b)

Cases cited (1)

  • Elijah Makeri Nyangwara Vs Stephen Mungai Njuguna & another
    ELC Case No. 609 B of 2012 (Eldoret)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over title to land ( plaint dated 17th August 2017)

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, "Esther Wamutira Karimi & 5 others v Lucy Karimi Miano & 4 others [2019] KEELC 1571 (KLR)", Case Analysis (2019). ELC Case (Kerugoya), plaint dated 17th August 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1571/eng@2019-09-20

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