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ELCAllowedMachakos ELC Case (Plaint dated 3rd September, 2013)· [2019] KEELC 1617 (KLR)

Michael Wambua Musyoka (Suing as the administrator of the Estate of Kiloko Mitaa (Deceased) v David Wachira Kagunda [2019] KEELC 1617 (KLR)

Environment and Land Court
20 September 2019
2,918 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Machakos cancelled land titles obtained through a fraudulent transfer of a deceased woman's property, ruling the documents were null and void.

What this practically means

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Executive summary

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The Plaintiff, a grandson and beneficiary of the Estate of Kiloko Mitaa holding a Limited Grant of Letters of Administration Ad Litem, sued the Defendant alleging that the Defendant fraudulently caused himself to be registered as proprietor of Mavoko Town Block 12/268, land posthumously registered in the name of the deceased by virtue of her shareholding in Drumvale Farmers Co-operative Society Limited. The Defendant claimed he had purchased the deceased's four shares in the Society in 1993 through an Agreement dated 29th June, 1993 signed by his brother, and that the land was lawfully transferred to him in 1999. The court framed two issues: whether the deceased relinquished her shares, and whether the Defendant was legally registered as proprietor. Relying on the official Liquidator's evidence that the Society's register still showed the deceased as owner of share No. 402 and parcel 268, the lack of proof of payment of the Kshs.65,000 consideration, the absence of any minute or register change, and the fact that the Defendant never signed the Agreement nor held a power of attorney, the court found the sale was not proved and the Agreement null and void. The posthumously registered title could not pass without a formal transfer signed by the administrator; the transfer was therefore fraudulent. The limitation defence, raised for the first time in submissions, failed both procedurally and substantively, since under section 26(a) of the Limitation of Actions Act time ran from discovery of the fraud on 2nd July, 2013. The court allowed the Plaint, issued a declaration of fraud, a permanent injunction over the sub-divided titles, ordered cancellation and rectification of the register, and awarded costs to the Plaintiff.

Key legal issues

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01

Whether the late Kiloko Mitaa sold her shares in Drumvale Farmers Co-operative Society Limited to the Defendant in 1993

Holding

The court found she did not: the register still showed her as owner, the mode of payment of Kshs.65,000 was never explained, the Agreement was signed by the Defendant's brother without a power of attorney, and the transaction was never minuted or reflected in the Society's register.

Reasoning

PW2, the official Liquidator, confirmed the register still showed Kiloko Mitaa as owner of share No. 402 and parcel 268. The 1993 Agreement was signed by DW3 on behalf of the Defendant, who admitted he never met the deceased, and no power of attorney was produced. No share certificate was produced in the Defendant's name and no effort to change the register was shown, discrediting the alleged purchase.

p. 3
02

Whether the Defendant was legally and procedurally registered as proprietor of Mavoko Town Block 12/268

Holding

No. The deceased was posthumously registered on 11th January, 1999 and transferred to the Defendant the same day without a formal transfer signed by her; the registration and subsequent sub-division were fraudulent and null and void.

Reasoning

The Green card showed Kiloko Mitaa registered as proprietor on 11th January, 1999 and transferred to the Defendant the same day. Since she was deceased and the register of the Society still reflected her as owner, no valid transfer signed by her or her administrator existed. Title passing to the Defendant without a formal transfer signed by the administrator was fraudulent and liable to cancellation.

p. 3
03

Whether the suit was time barred under Section 7 of the Limitation of Actions Act

Holding

No. The defence was never pleaded and, in any event, the cause of action in fraud accrued when the Plaintiff discovered the fraud on 2nd July, 2013, within twelve years of filing.

Reasoning

The limitation issue was raised for the first time in submissions without being pleaded or raised by preliminary objection. On the merits, the Plaintiff pleaded and proved that he discovered the fraudulent registration upon a search; the certified Green card was issued on 2nd July, 2013, so time began to run then under section 26(a) of the Limitation of Actions Act.

p. 4

Legal principles established

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  • A transfer executed by a person without a power of attorney from the owner is null and void.
  • A posthumously registered proprietor's title cannot pass to another without a formal transfer signed by the administrator of the estate.
  • A limitation defence must be pleaded in the defence or raised by preliminary objection, not for the first time in submissions.
  • In fraud cases, under section 26(a) of the Limitation of Actions Act, time does not run until the plaintiff discovers the fraud.

Court orders

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  1. 1.A declaration that the substitution of the name of Kiloko Mitaa (deceased) with that of the Defendant as proprietor of title number Mavoko Town Block 12/268 and the subsequent sub-division of the title were wrongful and/or fraudulent and thus null and void.
  2. 2.A permanent injunction restraining the Defendant from alienating, charging, selling or otherwise dealing with titles numbered Mavoko Town Block 12/5309 to 5325 created by the sub-division of title number Mavoko Town Block 12/268 or laying claims over them.
  3. 3.An order directing the Defendant to return the title numbers Mavoko Town Block 12/5309 to 5325 to the Land Registrar for cancellation and directing the Land Registrar Machakos to effect rectification of the register and reinstate the original owner as proprietor of the several sub-divided titles.
  4. 4.Costs of the suit to be paid by the Defendant.

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Land Registration ActSection 26
  • Law of Contract ActSection 3(3)
  • Evidence ActSection 96
  • Limitation of Actions ActSections 7 and 26(a)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Michael Wambua Musyoka (Suing as the administrator of the Estate of Kiloko Mitaa (Deceased) v David Wachira Kagunda [2019] KEELC 1617 (KLR)", Case Analysis (2019). Machakos ELC Case (Plaint dated 3rd September, 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1617/eng@2019-09-20

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