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ELCPartially AllowedNot stated in the judgment (Githunguri/Kimathi/565 suit, Thika)· [2019] KEELC 2606 (KLR)

Mary Njeri Ngahu v James Kanui Njoera & another [2019] KEELC 2606 (KLR)

Environment and Land Court
28 June 2019
2,632 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Thika cancelled fraudulent land titles created by bypassing a valid Will, and restored the original register.

What this practically means

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Executive summary

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The plaintiff sued her brothers (the Defendants) seeking declarations that their registration as proprietors of land parcel Githunguri/Kimathi/565 and its subsequent partition were fraudulent and void, cancellation of all titles excised from it, restoration of the register, and permanent injunction, plus costs and interest. She was the executor and confirmed administrator of their father Njoera Gatumbi's estate, whose Will was confirmed on 22nd November 2010 in Succession Cause No. 279 of 1998. She alleged that on 11th March 2016 the Defendants presented a second, unauthorised certificate of confirmation to the Kiambu Land Registrar, transferred the land to themselves, and partitioned it on 10th August 2016 contrary to the Will. The 1st Defendant denied involvement, alleging his signature was forged and that the 2nd Defendant acted alone; the 2nd Defendant never entered appearance. The court framed two issues: proof of the case and entitlement to the orders sought. Applying Section 107(1) of the Evidence Act and the Koinange standard that fraud must be strictly proved, and holding that uncontroverted evidence still requires interrogation, the court found the plaintiff had proved fraud: only the administrator may distribute the estate under Section 83(f) of the Law of Succession Act, so the Defendants' actions constituted misrepresentation and fraud. Invoking Section 80(1) of the Land Registration Act, the court allowed the claim in terms of the Plaint except the temporary injunction (prayer (c)), which was spent, ordered cancellation of the subdivisions and resultant titles, restoration of the register, and distribution per the confirmed Will and Grant, with costs and interest to the plaintiff.

Key legal issues

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01

Whether the plaintiff proved the alleged fraud against the Defendants

Holding

Yes. The plaintiff proved that a second, unauthorised certificate of confirmation of grant was presented to the Land Registrar, and the subdivision and transfer contrary to the confirmed Will were fraudulent and void.

Reasoning

The plaintiff, as confirmed administrator under the Will, was the only person entitled to distribute the estate under Section 83(f) of the Law of Succession Act. Presentation of a second certificate of confirmation and distribution by non-administrators amounted to misrepresentation to the Land Registrar and Surveyor, satisfying the definition of fraud. The evidence against the 2nd Defendant was uncontroverted, and the 1st Defendant himself alleged forgery of his signature.

p. 3
02

Whether unchallenged evidence automatically entitles a plaintiff to judgment

Holding

No. Even where a defendant does not respond, the plaintiff must still prove the case on a balance of probability.

Reasoning

Relying on Kenya Power & Lighting Co Ltd v Nathan Karanja Gachoka and Gichinga Kibutha v Caroline Nduku, the court held that uncontroverted evidence must be interrogated by the court and cannot be taken as truthful merely because it is unchallenged.

p. 3
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Whether the plaintiff is entitled to cancellation of titles and restoration of the register

Holding

Yes. The court invoked Section 80(1) of the Land Registration Act to order cancellation of the subdivisions and resultant titles.

Reasoning

Having found fraud in the subdivision, the court held it had no option but to order cancellation of the subsequent partitions and certificates of title, restore the register, and allow distribution per the confirmed Will and Grant of 22nd November 2010.

p. 4

Legal principles established

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  • Allegations of fraud must be strictly proved; the standard is more than a balance of probabilities though not beyond reasonable doubt.
  • Uncontroverted evidence is not automatic proof of a case; a plaintiff must still discharge the burden of proof.
  • A register may be rectified where a registration was obtained by fraud or mistake under Section 80(1) of the Land Registration Act.

Court orders

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  1. 1.Declaration that the registration of the Defendants as proprietors of land parcel Githunguri/Kimathi/565 was fraudulent and void
  2. 2.Declaration that the subsequent partitioning of land parcel Githunguri/Kimathi/565 was void
  3. 3.Permanent injunction restraining the Defendants from occupying, disposing of, selling, charging, subdividing or interfering with the suit property
  4. 4.Cancellation of all registrations of parcels excised from Githunguri/Kimathi/565 and cancellation of the certificates of titles issued after the subdivisions under Section 80(1) of the Land Registration Act
  5. 5.Restoration of the register as it was before the Defendants' fraudulent activities
  6. 6.The deceased's estate to be distributed as per the Last Will and the Confirmed Grant issued on 22nd November 2010, with liberty for any dissatisfied party to move the court in the said Succession matter
  7. 7.Costs of the suit to the Plaintiff with interest at court rates

Authorities

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Legislation

  • Evidence ActSection 107(1)
  • Law of Succession ActSection 83(f)
  • Land Registration ActSection 80(1)

Cases cited (5)

  • Shaneebal Limited Vs County Government of Machakos (2018) eKLR
    (2018) eKLR
  • Karuru Munyororo Vs Joseph Ndumia Murage & Another, Nyeri HCCC No.95 of 1988
    Nyeri HCCC No.95 of 1988
  • Koinange & 13 Others Vs Koinange [1986] KLR 23
    [1986] KLR 23
  • Kenya Power & Lighting Company Limited Vs Nathan Karanja Gachoka & another [2016] eKLR
    [2016] eKLR
  • Gichinga Kibutha Vs Carooline Nduku (2018) eKLR
    (2018) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land parcel Githunguri/Kimathi/565

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, "Mary Njeri Ngahu v James Kanui Njoera & another [2019] KEELC 2606 (KLR)", Case Analysis (2019). Not stated in the judgment (Githunguri/Kimathi/565 suit, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2606/eng@2019-06-28

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