Michael Wambua Musyoka (Suing as the administrator of the Estate of Kiloko Mitaa (Deceased) v David Wachira Kagunda [2019] KEELC 1617 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the late Kiloko Mitaa sold her shares in Drumvale Farmers Co-operative Society Limited to the Defendant in 1993
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.
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.
Whether the Defendant was legally and procedurally registered as proprietor of Mavoko Town Block 12/268
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.
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.
Whether the suit was time barred under Section 7 of the Limitation of Actions Act
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.
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.
Legal principles established
#- 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
#- 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.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.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.Costs of the suit to be paid by the Defendant.
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Reuben Makau Mutindimi v John Chuaga Nganga[2026] KEELC 5639 (KLR)24 Sept 2026
- Reuben Makau Mutindimi v John Chuaga Nganga[2026] KEELC 5639 (KLR)24 Sept 2026followed
Cite this brief
#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.