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ELCPartially AllowedELC Case No. 73 of 2017 (Formerly Machakos ELC No. 240 of 2010)· [2019] KEELC 3248 (KLR)

Rachel Mwikali Kanyolo (Suing on behalf of the Estate of Herman Syanda Kanyolo) v Mary Nduta Wakaba (Sued on behalf of the Estate of Naomi Nyambura Wakaba) & 9 others [2019] KEELC 3248 (KLR)

Environment and Land Court
20 May 2019
7,209 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled fraudulently obtained land titles, ruling that selling a deceased person's land without letters of administration is void.

What this practically means

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Executive summary

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The Plaintiff, suing on behalf of the estate of Herman Syanda Kanyolo, sought a permanent injunction and declarations that the suit parcels KJD/KAPUTIEI NORTH/6742 and 6743 were fraudulently transferred from the deceased to the late Naomi Nyambura Wakaba and onwards through successive defendants, culminating in the 5th Defendant, and sought rectification of the register. The court framed seven issues. On limitation, it held the claim was not statute barred because limitation ran afresh when the Plaintiff learned of the 2004 and 2010 transactions. It held the 19th April 2004 Sale Agreement between the 1st and 2nd Defendants was void under sections 45(1) and 55 of the Law of Succession Act since the 1st Defendant had no letters of administration when she sold the deceased's land. The 4th Defendant was exonerated, having rescinded his purchase and obtained a refund. The 5th Defendant failed to establish bona fide purchaser status: the Green Card and title deeds contained irreconcilable date contradictions, the vendors held no title when the sale agreement was executed, the Land Control Board consent was defective, and searches were not produced. Fraud was proved against the 1st, 2nd, 3rd, 5th and 6th Defendants. Forensic evidence established the forged transfer signature, and the court declared the suit lands to belong to the estate of Herman Syanda Kanyolo. Judgment was entered with a permanent injunction, declarations of fraud and nullity, an order of rectification of the register, and costs against the 1st, 2nd and 3rd Defendants equally. The 5th Defendant was left to be indemnified by the 2nd and 3rd Defendants.

Key legal issues

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01

Whether the suit was statute barred under sections 4 and 7 of the Limitation of Actions Act

Holding

The suit was not statute barred; limitation ran afresh when the Plaintiff learned of the fresh 2004 and 2010 transactions.

Reasoning

The Defendants argued the Plaintiff knew of the fraud from 2001. The court applied section 7 (twelve years for recovery of land) and section 26 (fraud/mistake extension). Because there were fresh transactions in 2004 and 2010, the limitation period began to run when the Plaintiff learned of those fresh transactions, not from the 2001 fraud.

p. 4
02

Whether the 1st Defendant had capacity to transfer the deceased's land

Holding

The purported Sale Agreement was void because the 1st Defendant lacked letters of administration when she sold the deceased's land.

Reasoning

Sections 45(1) and 55 of the Law of Succession Act prohibit dealing with a deceased's free property without a grant, and a confirmed grant is required to distribute capital assets. Letters of administration were gazetted only on 8th October 2004, after the 19th April 2004 agreement. Following the Court of Appeal in Winnie Kinyua Kaburu, the agreement was void.

p. 4
03

Whether the 5th Defendant is a bona fide purchaser for value without notice

Holding

The 5th Defendant is not a bona fide purchaser; the vendors had no title at the time of the sale agreement and the transaction was riddled with contradictions.

Reasoning

The Green Card showed the 3rd Defendant obtained title only in August 2010 yet the Sale Agreement was April 2010; the Land Control Board consent referenced only one parcel and named a non-owner as applicant; dates on titles contradicted Green Card entries; transfers were signed by one director without the company seal; no searches were produced. Applying Arthi Highway Developers and Katende, indefeasibility is unavailable where acquisition is irregular.

04

Whether the Plaintiff proved the suit lands belonged to the estate of Herman Syanda Kanyolo

Holding

Yes; the forensic evidence showed the transfer signature was forged and the lands belong to the estate.

Reasoning

A forensic document examiner's report showed the purported signature of Herman Syanda Kanyolo could not have been his. The Land Registrar produced documents confirming the authentic transfer from Betty Wambui Radovan to the deceased, and no fraud was claimed against that transfer. Applying Kinyanjui Kamau v George Kamau Njoroge, the court found the lands belong to the deceased's estate and directed rectification under section 143 of the repealed Registered Land Act (similar to section 80 of the Land Registration Act).

p. 7

Legal principles established

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  • An agreement entered into in respect of a deceased person's estate without letters of representation is void.
  • A party cannot invoke indefeasibility of title where the process of acquisition of the title is irregular.
  • A title acquired fraudulently cannot stand.
  • A bona fide purchaser must prove holding a certificate of title, good faith, no knowledge of fraud, vendor's apparent valid title, purchase without notice of fraud and non-participation in fraud.

Court orders

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  1. 1.A permanent injunction restraining the 1st, 2nd, 3rd, 4th, 5th and 6th Defendants from trespassing, encroaching, alienating, transferring, selling, leasing and charging or in any other way dealing in L.R. Nos. KJD/KAPUTIEI NORTH/6742 and KJD/KAPUTIEI NORTH/6743
  2. 2.A declaration that the late HERMAN SYANDA KANYOLO (deceased) was the bona fide owner and proprietor of titles Nos. KJD/KAPUTIEI NORTH/6742 and KJD/KAPUTIEI NORTH/6743
  3. 3.A declaration that the 3rd Defendant's title issued on 27th June 2001 and those subsequently issued to the 1st, 2nd, 4th and 5th Defendants were obtained fraudulently
  4. 4.A declaration that the processing and issuance by the Land Registrar, Kajiado of the Title Deeds in respect of the suit parcels was unlawful and hence a nullity
  5. 5.An order that the Chief Land Registrar and Registrar of Lands, Kajiado rectify the Land Register to reflect that the suit parcels belong to the estate of the late HERMAN SYANDA KANYOLO
  6. 6.Costs of the suit awarded to the Plaintiff to be borne by the 1st, 2nd and 3rd Defendants equally

Authorities

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Legislation

  • Limitation of Actions Actsections 4(2), 7, 26
  • Law of Succession Actsections 45(1), 55
  • Registered Land Act (repealed)sections 39, 85, 109, 136, 137, 138, 143
  • Land Registration Actsections 25, 26, 80

Cases cited (7)

  • Winnie Kinyua Kaburu V Ali Juma Abdirahman & Another
    (2018) eKLR
  • Arthi Highway Developers Limited V West End Butchery Limited & 6 others
    (2015) eKLR
  • Katende V Haridar & Company Ltd
  • Lawrence Mukiri V Attorney General & 4 others
    ELC 169 of 2008
  • Alice Chemutai Too Vs Nickson K. Korir & 2 others
    (2015) eKLR
  • Dennis Mukhulo Ochwada & another Vs Elizabeth Mungai Njoroge & Another
    (2018) eKLR
  • KINYANJUI KAMAU Vs GEORGE KAMAU NJOROGE
    Civil Appeal No. 132 of 2005
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court); original civil jurisdiction 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, "Rachel Mwikali Kanyolo (Suing on behalf of the Estate of Herman Syanda Kanyolo) v Mary Nduta Wakaba (Sued on behalf of the Estate of Naomi Nyambura Wakaba) & 9 others [2019] KEELC 3248 (KLR)", Case Analysis (2019). ELC Case No. 73 of 2017 (Formerly Machakos ELC No. 240 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3248/eng@2019-05-20

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