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ELCDismissedNot stated in the judgment (plaint dated 22nd April 2015, amended 15th June 2016)· [2020] KEELC 515 (KLR)

Muikamba Kiranga & another v Faith Muthoni Maringa & 4 others [2020] KEELC 515 (KLR)

Environment and Land Court
13 November 2020
3,958 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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The court dismissed a family land dispute because the buyers had done everything right, confirming that Kenyan law protects honest purchasers of land.

What this practically means

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Executive summary

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The plaintiffs, daughters of the house of Kavoi Murimi (deceased), sued seeking declarations that the 1st defendant's registration as joint owner of land parcel INOI/KIAMBURI/665, originally belonging to their late mother Kavoi, was fraudulent or alternatively held in trust for them, and seeking cancellation of the 2nd defendant's name from the resultant sub-divisions INOI/KIAMBURI/1320, 1321 and 1322 which the 1st defendant's family (the 3rd, 4th and 5th defendants) sold to him for Ksh. 1,450,000/=. The 1st defendant contended the late Kavoi transferred the land of her own free will during her lifetime, while the 2nd defendant asserted he was a bona fide purchaser for value without notice, having obtained Land Control Board consent and vacant possession. The court framed three issues: whether fraud or misrepresentation was pleaded and proved against the 2nd defendant; whether his titles were acquired illegally, un-procedurally or through a corrupt scheme; and costs. Applying Section 26(1) of the Land Registration Act, the court held the plaintiffs pleaded no fraud against the 2nd defendant and proved none; fraud must be specifically pleaded and distinctly proved to a heightened standard. The 2nd defendant was a bona fide purchaser for value whose title is protected even if predecessors' dealings were tainted. The plaintiffs' discrimination and succession-based arguments could not defeat the registered title. The suit was dismissed with each party bearing their own costs, given the parties are close blood relations.

Key legal issues

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01

Whether fraud was pleaded and proved against the 2nd defendant

Holding

No fraud was pleaded or proved against the 2nd defendant; particulars of fraud were set out against the other defendants only

Reasoning

The amended plaint set out particulars of fraud against the defendants except the 2nd defendant. Fraud must be specifically pleaded and distinctly proved and cannot be inferred from facts or raised for the first time in submissions. The plaintiffs failed to discharge the burden, so the claim of fraud could not stand against the registered proprietor.

p. 4
02

Indefeasibility of the 2nd defendant's title and the bona fide purchaser doctrine

Holding

The 2nd defendant's title is indefeasible; he is a bona fide purchaser for value without notice of any fraud

Reasoning

At the time of purchase the parcels were unencumbered, the vendors were registered proprietors in possession, the sale complied with the Law of Contract Act and Land Control Board consent was obtained. Following Section 26(1) LRA and Article 40(6) jurisprudence, property in the hands of a bona fide purchaser is protected even if a predecessor fraudulently transacted the land.

p. 4
03

Costs

Holding

Each party to bear own costs notwithstanding the general rule that costs follow the event

Reasoning

Although under Section 27 of the Civil Procedure Act costs ordinarily follow the event, the parties are close blood relations and the court directed each party to bear their own costs to promote harmony and co-existence.

p. 5

Legal principles established

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  • Fraud must be specifically pleaded and distinctly proved; it cannot be left to be inferred from facts
  • A registered proprietor's title under Section 26(1) of the Land Registration Act can only be impeached on grounds of fraud or misrepresentation to which he is a party, or where the title was acquired illegally, un-procedurally or through a corrupt scheme
  • A bona fide purchaser for value must show valid and legal title, due diligence and payment of valuable consideration; his title is protected even if a predecessor's title was fraudulently transacted
  • Fraud is a serious matter which must be proved to a standard higher than ordinary civil cases but lower than criminal cases

Court orders

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  1. 1.Suit dismissed
  2. 2.Each party to bear his/her own costs

Authorities

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Legislation

  • Land Registration ActSection 26(1)(a) and (b)
  • Law of Succession ActSections 35, 36, 37, 38 and 40
  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 40(6)
  • Constitution of Kenya, 2010Article 259(1)
  • Law of Contract ActCap. 23
  • Civil Procedure ActSection 27
  • Limitation of Actions ActNot specified (raised in defence)

Cases cited (17)

  • Elizabeth Njoki & Another Vs Muthoni Muriuki and 2 others
    ELC Case No. 25 of 2012, Kerugoya (U.R)
  • Margaret Wambuci Mbulu (Suing as the representative of the Estate of Miriari Mbaratwa (deceased) Vs Mianaxi Kiritkumar Patel & 2 others
    ELC No. 797 of 2013, Kerugoya (U.R)
  • Alice Chumutai Too Vs Nickson Kipkurui Korir & 2 others
    (2015) eKLR
  • Carol Silcock Vs Kassim Shariff Mohamed
    (2013) eKLR
  • Olympic Company Trading Ltd & Another Vs Said Mohamed & 4 others
    (2014) eKLR
  • Samuel Kamere Vs Lands Registrar, Kajiado
    (2015) eKLR; Civil Appeal Number 28 of 2005 (unreported)
  • Nancy Kahoya Amarida (Amadira) Vs Expert Credit Limited & Another
    (2015) eKLR
  • Samwel D. Omwenga Angwenyi Vs National Land Commission & 2 others
    (2019) eKLR
  • Charles Karathe Kiarie & 2 others Vs Administration of the Estate of John Wallace Mathane (deceased) & 5 others
    (2013) eKLR
  • Njilux Motors Ltd Vs KPSL & Nairobi City Commission
    C/A Case No. 206 of 1998
  • Job Kipnandi Chebon Vs Makana Transporters Ltd & 3 others
    Not stated
  • Edwin Wambua & others
    Mombasa HCCC No. 274 of 209
  • Russel & Co. Ltd Vs Commercial Bank of Africa Ltd
    (1986) KLR 633
  • Rose Njoki Kingau & Another Vs Shaba Trustees Ltd & Another
    Civil Application Nairobi 111 of 2010
  • Elijah Arap Bii Vs Samuel Gitau & K.C.B
    Civil Appeal No. 155 of 2006
  • Shimoni Resort Vs Registrar of Titles & 5 others
    (2016) eKLR
  • Isaac Gathungu Wanjohi & Another Vs Attorney General & 6 others
    (supra) - citation not stated
Jurisdiction invoked
Not expressly stated; original civil jurisdiction of the Environment and Land Court over title to land parcel INOI/KIAMBURI/665 and its sub-divisions

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Muikamba Kiranga & another v Faith Muthoni Maringa & 4 others [2020] KEELC 515 (KLR)", Case Analysis (2020). Not stated in the judgment (plaint dated 22nd April 2015, amended 15th June 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/515/eng@2020-11-13

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