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ELCAllowedMachakos ELCC (to be confirmed from header of original filing)· [2019] KEELC 3597 (KLR)

Sylee Matheka v Alfred Nthiwa Matheka & 3 others [2019] KEELC 3597 (KLR)

Environment and Land Court
3 May 2019
2,734 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cancelled land titles registered to sons over a year after their father's death because no signed transfer documents existed.

What this practically means

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Executive summary

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Syulee Matheka, one of four widows of Jonathan Matheka, who died intestate on 13 September 2011, sued the deceased's three sons and the Land Registrar, seeking declarations that parcels Nzaui/Mumbuni/686, 687 and 688 were unlawfully transferred to the sons after the deceased's death, cancellation of the titles, inclusion of the parcels in the estate in Machakos Succession Cause No. 219 of 2015, a permanent injunction, and costs. She held letters of administration ad litem. Her case was that searches revealed the parcels were registered to the Defendants on 14 November 2012, over a year after the death, with no transfer documents signed by the deceased. The first three Defendants asserted the deceased had subdivided and shared the land among his sons during his lifetime, relying on Land Control Board receipts dated February 2011, but they did not produce the titles or executed transfer forms. The 4th Defendant did not participate. The court adopted the Plaintiff's counsel's three issues. It held that under the registered-land regime a lifetime transfer required a written, duly executed transfer; in its absence, and given the posthumous registration entries, the only inference was that the transfers were completed after death. Although the legal burden lay on the Plaintiff, the Defendants bore an evidential burden to show how they acquired title, which they failed to discharge; counsel's explanation of administrative delay was evidence from the bar. Relying on Section 119 of the Evidence Act, the court found the transfers irregular and null and void, held the parcels belong to the estate, and entered judgment for the Plaintiff on prayers (a) to (f), including costs. Judgment delivered at Makueni on 3 May 2019 by Mbogo C. G., J.

Key legal issues

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01

Whether the deceased transferred the suit parcels to the Defendants during his lifetime

Holding

No valid inter vivos transfer was proved; the transfers were effected after the deceased's death and are null and void

Reasoning

It was common ground that the deceased died on 13 September 2011 and had subdivided Nzaui/Mumbuni/79 into the three suit parcels, registered in his own name on 15 February 2011. No written memorandum or transfer signed by the deceased was produced; the Defendants failed to produce the transfer forms or title documents. The green cards show the entries in favour of the Defendants were made on 14 November 2012, over a year after the death. The court inferred the transfers were completed after death and relied on authority that gifts of registered land must be by registered transfer or in writing.

p. 4
02

Whether the Defendants fraudulently effected the transfers

Holding

The transfers were irregularly done; the Defendants failed to discharge their evidential burden of showing how they acquired the titles

Reasoning

Although the Plaintiff bore the legal burden, the Defendants asserting registered ownership had an evidential burden to prove lawful acquisition. They neither produced title documents nor transfer forms signed by the deceased, and their counsel's explanation about administrative delay at the Makueni lands office was held to be evidence from the bar since no defendant testified to it. The court drew an adverse inference consistent with Section 119 of the Evidence Act from the withheld documents.

p. 4
03

Whether the Plaintiff established a cause of action on a balance of probabilities

Holding

Yes; judgment entered in terms of prayers (a) to (f) of the plaint

Reasoning

On the proved facts - the deceased's undisputed death, the subdivision into parcels registered in his name, and posthumous registration entries in favour of the Defendants without any executed transfer documents - the Plaintiff demonstrated the transfers were irregular. The court concluded she satisfied the balance of probabilities standard and granted all substantive prayers including the permanent injunction and costs.

p. 4

Legal principles established

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  • A gift or transfer of registered land during the donor's lifetime must be effected by a duly executed written transfer or registered instrument; absent such documentation, the property remains part of the estate
  • Even where the legal burden of proof lies with the plaintiff, a defendant asserting lawful acquisition of title bears an evidential burden to show how the title was acquired
  • Registration entries effected after the registered owner's death are irregular and the transfer process is null and void

Court orders

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  1. 1.A declaration that the properties Nzaui/Mumbuni/686, Nzaui/Mumbuni/687 and Nzaui/Mumbuni/688 were illegally and/or unlawfully transferred into the names of the 1st, 2nd and 3rd Defendants
  2. 2.A declaration that the purported transfers registered against the titles of the three parcels are null and void
  3. 3.A declaration that the three properties belong to the estate of the deceased and form part of the properties in Machakos High Court Succession Cause No. 219 of 2015 (Estate of Matheka Mutaiti - Deceased)
  4. 4.An order of cancellation of any title deeds issued in the names of the three Defendants in respect of the three parcels
  5. 5.A permanent injunction restraining the Defendants from intermeddling with, subdividing, cultivating, alienating, leasing, constructing on, occupying or otherwise dealing with the three parcels
  6. 6.Costs of the suit to the Plaintiff

Authorities

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Legislation

  • Evidence ActSection 119

Cases cited (3)

  • Mary Muthoni vs. Francis Mwangi Muthara
    [2016] eKLR
  • Re Estate of the late Gedion Manthi Nzioka (Deceased)
    [2015] eKLR
  • Peter Gichuki King'ara vs. Independent Electoral & Boundaries Commission and 2 others
    [2013] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over registered land parcels; plaintiff sued under letters of administration ad litem issued in Machakos Succession Cause No. 336 of 2015

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, "Sylee Matheka v Alfred Nthiwa Matheka & 3 others [2019] KEELC 3597 (KLR)", Case Analysis (2019). Machakos ELCC (to be confirmed from header of original filing). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3597/eng@2019-05-03

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