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ELCPartially AllowedNot stated in the judgment· [2019] KEELC 2192 (KLR)

Daniel Njogu Nyaga v Alice Wanjiku [2019] KEELC 2192 (KLR)

Environment and Land Court
5 July 2019
ECE.C. Cherono
1,361 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan buyer who purchased land from someone selling a deceased relative's property lost his title and his eviction case entirely.

What this practically means

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Executive summary

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The plaintiff, Daniel Njogu Nyaga, sued the defendant, Alice Wanjiku, for an order of eviction from land parcel No. BARAGWE/KARIRU/1462 plus costs. The plaintiff claimed to have purchased the land in 1998 from Joseph Mugo Gasaramu and found the defendant in occupation in 2012. The defendant, who identified herself as the daughter-in-law and only surviving heir of the original registered owner Njeru Mwathuki, denied the claim and counter-claimed for a declaration that the plaintiff's registration was fraudulently obtained, seeking cancellation of the title and reversion to the name of Njeru Mwathuki. An earlier interlocutory judgment in the plaintiff's favour had been set aside with leave to file defence. The court found that the sale agreements of 16th September 1997 and 11th December 1998 involved the purported sale of land belonging to a deceased registered owner before letters of administration had been taken out, and that the plaintiff was careless and reckless in purchasing from a vendor selling shares of his uncle's land without establishing whether he was alive. The court held both agreements null, void and illegal, and found the sub-division of the original parcel BARAGWE/KARIRU/621 into parcels 1461 and 1462 was procured through fraud and illegality. Relying on Alice Chemutai Too v Nickson Kipkurui Korir and the Court of Appeal decision in Arthi Highway Developers Ltd, the court affirmed that a fraudulent title cannot stand. The plaintiff's suit was dismissed, the defendant's counter-claim was proved to the required standard, the titles were cancelled, the register was rectified to revert the land to Njeru Mwathuki, costs were awarded to the defendant, and the judgment was referred to the DCI for investigation of the fraud.

Key legal issues

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01

Validity of sale of land by a person with no capacity where the registered owner is deceased

Holding

The sale agreements were null, void and illegal as the purported vendor had no capacity to deal with the property of a deceased person before administration

Reasoning

The plaintiff bought land from Joseph Mugo Gasaramu who purported to sell shares of his uncle's land. The registered owner, Njeru Mwathuki, died on 7th October 1998 and letters of administration had not been taken out. The court found the plaintiff careless and reckless in not verifying the vendor's capacity, and held both the 1997 and 1998 agreements void for fraud and illegality.

p. 2
02

Whether the defendant proved her counter-claim of fraudulent acquisition of title

Holding

The defendant proved the counter-claim to the required standard and the titles were cancelled with the register rectified

Reasoning

The green card showed the original parcel was registered to Njeru Mwathuki in 1959 and closed on sub-division in June 1998, with parcel 1462 registered directly to the plaintiff while the registered owner was deceased. The court relied on authority that fraudulent titles cannot stand, agreed with Munyao Sila J., and entered judgment for the defendant on her counter-claim as prayed.

p. 2

Legal principles established

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  • A title obtained through fraud and illegality cannot be allowed to stand

Court orders

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  1. 1.Declaration that the sub-division of land parcel No. BARAGWE/KARIRU/621 was fraudulent and illegal and is null and void
  2. 2.Cancellation of titles No. BARAGWE/KARIRU/1461 and BARAGWE/KARIRU/1462
  3. 3.Rectification of the register of parcels 1461 and 1462 to remove entries in favour of Daniel Njogu Nyaga and revert title to J.N. Njeru Mwathuki alias Njeru Mwathuki
  4. 4.Costs of the counter-claim and the dismissal of the suit borne by the plaintiff
  5. 5.Copy of judgment forwarded to the Directorate of Criminal Investigation (C.I.D) Kirinyaga County for investigation and prosecution of persons who may have committed fraud

Authorities

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Cases cited (2)

  • ALICE CHEMUTAI TOO VS NICKSON KIPKURUI KORIR & 2 OTHERS
    (2015) e K.L.R
  • Arthi Highway Developers Limited Vs West end Butchery Ltd & 6 others
    Court of Appeal at Nairobi Civil Appeal No. 246 of 2013 (2015) e K.L.R
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes

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, "Daniel Njogu Nyaga v Alice Wanjiku [2019] KEELC 2192 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2192/eng@2019-07-05

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