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ELCDismissedNot stated in the judgment as provided· [2019] KEELC 3528 (KLR)

Annah Muthoni Njaimwe v Philip Kirichu Ngugi & 3 others [2019] KEELC 3528 (KLR)

Environment and Land Court
30 April 2019
5,369 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a land buyer's title because the seller's grant of administration had been revoked, so the buyer had no valid ownership.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of L.R No. 7785/402 since 2009, sued for a permanent injunction and, in the alternative, eviction of the 1st and 3rd defendants, alleging trespass from February 2014. She testified that she bought the property from the 3rd defendant for Kshs. 3.5 million under a certificate of confirmation of grant showing the property bequeathed to the 3rd defendant alone. The 1st, 3rd and 4th defendants resisted by an amended defence and counter-claim, showing the grant relied on had been revoked by the High Court in Succession Cause No. 2704 of 1999 on 3rd April 2000, and a fresh distribution of the estate of Ngugi Gaturo (deceased) made on 7th September 2004 allocated the property to the 3rd and 4th defendants, with the 3rd defendant ordered to surrender the earlier grant and title documents. They sought dismissal, an injunction against the plaintiff, and cancellation of register entries numbers 2 and 3 of 20th March 2009 with reversion to the estate. The court framed five issues and held that the revoked grant was null and void, conferring no interest on the 3rd defendant, who held it in defiance of a court order; under Macfoy and nemo dat quod non habet she conveyed nothing to the plaintiff. The bona fide purchaser defence and statutory indefeasibility (sections 23(1) RTA and 26(1) LRA) could not protect an illegally created title. The defendants, as heirs with a right to occupy pending distribution, were not trespassers. The plaintiff's suit was dismissed and judgment entered on the counter-claim in terms of prayers (ii) and (iii), with costs to the 1st and 4th defendants.

Key legal issues

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01

Whether the plaintiff acquired the suit property lawfully

Holding

No - the grant under which the 3rd defendant sold had been revoked, so the plaintiff obtained no interest

Reasoning

The grant of letters of administration relied on by the 3rd defendant had been revoked by the High Court on 3rd April 2000, years before the 2009 transaction. The 3rd defendant held the grant in defiance of an order to surrender it. A revoked grant was a nullity conferring no interest; under nemo dat quod non habet she could pass nothing to the plaintiff, whose title was therefore fraudulent and illegal.

p. 4
02

Whether the plaintiff was a bona fide purchaser for value without notice

Holding

The doctrine could not assist her because the vendor had no interest to convey

Reasoning

Even assuming the plaintiff acquired an interest, it was acquired from a fraudster and could not defeat the 4th defendant's legal interest conferred by the court's fresh distribution order of 7th September 2004. The court held that the 4th defendant's right superseded the plaintiff's interest whether or not she had notice. Statutory indefeasibility cannot protect an illegally created title.

p. 5
03

Whether the defendants trespassed on the suit property

Holding

No - the plaintiff had no interest or possession, and the heirs had a right to occupy pending distribution

Reasoning

Trespass requires intrusion on land in the possession of another without justifiable cause. The plaintiff held no valid interest and was not in possession. Further, the defendants as heirs of the deceased had a right to enter and occupy the property until distribution as ordered by the court, so their entry was justified.

p. 5
04

Whether the defendants were entitled to the reliefs in the counter-claim

Holding

Yes - they proved the plaintiff acquired the property unlawfully

Reasoning

The 1st, 3rd and 4th defendants established that the plaintiff's title was fraudulently and illegally obtained under a revoked grant. They were entitled to the injunction restraining the plaintiff and to cancellation of entries numbers 2 and 3 registered on 20th March 2009, with the property reverting to the estate of the deceased.

p. 5

Legal principles established

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  • A grant of letters of administration that has been revoked is a nullity and confers no capacity to sell; a transferee acquires no interest under it (nemo dat quod non habet)
  • Indefeasibility of title under sections 23(1) Registration of Titles Act and 26(1) Land Registration Act cannot protect a title acquired unlawfully, being subject to Article 40(6) of the Constitution
  • An act done in defiance of a court order is illegal and no advantage should be derived from it
  • A person without possession or interest in land cannot maintain an action in trespass

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Judgment is entered for the 1st, 3rd and 4th defendants against the plaintiff in terms of prayers (ii) and (iii) of the amended counterclaim dated 26th September, 2017
  3. 3.The costs of the suit and the counter-claim are awarded to the 1st and 4th defendants

Authorities

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Legislation

  • Law of Contract Actsection 3(3)
  • Registration of Titles Act, Chapter 281 Laws of Kenya (now repealed)section 23(1)
  • Land Registration Act, 2012section 26(1)
  • Civil Procedure Actsection 7
  • Constitution of Kenya, 2010Article 40(6)

Cases cited (17)

  • Hanington Malingi Janji v Katana Pekeshe & 7 others
    [2013] eKLR
  • Shimoni Resort v Registrar of Titles & 5 others
    [2015] eKLR
  • Esther Ndegi Njiru & another v Leonard Gatei
    [2014] eKLR
  • Nancy Kahoya Amadiva v Expert Credit Ltd & another
    [2015] eKLR
  • Arthi Highway Developers Ltd. v West End Butchery & 6 others
    [2015] eKLR
  • Compar Investment Ltd v National Land Commission & others
    [2016] eKLR
  • Lawrence P. Mukiri v Attorney General & 4 others
    [2013] eKLR
  • R v Principal Secretary, Ministry of Defence Ex parte George Kariuki Waithaka
    (2013) eKLR
  • Josephat Muthui Mwangi v Chief Land Registrar & 2 others
    [2015] eKLR
  • Alice Chemutai Too v Nickson Kipkurui Korir & 2 others
    [2015] eKLR
  • Elijah Makeri Nyangwara v Stephen Mungai Njuguna & another
    [2013] eKLR
  • ET v Attorney General & another
    [2012] eKLR
  • Kenya Tea Growers Association v Francis Atwoli & 5 Others
    [2012] eKLR
  • Clarke and Others v Chadburn & Others
    [1985] 11 ALL ER (P.C) 211
  • Macfoy v United Africa Co. Ltd.
    (1961) 3 All E.R 1169
  • African Line Transport Co. Ltd. v The Hon. Attorney General
    Mombasa HCCC No. 276 of 2003
  • Henry Muthee Kathurima v Commissioner of Lands & Another
    (2015) eKLR
Jurisdiction invoked
Original civil suit on land title, trespass and counter-claim under the Land Registration Act, 2012 (no specific constitutional provision invoked for jurisdiction)

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, "Annah Muthoni Njaimwe v Philip Kirichu Ngugi & 3 others [2019] KEELC 3528 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3528/eng@2019-04-30

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