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ELCDismissedNot stated in judgment· [2020] KEELC 2260 (KLR)

Margaret Ringa P.M. Gitonga & another v Jacinta Njoki Wahogo & 6 others [2020] KEELC 2260 (KLR)

Environment and Land Court
5 June 2020
OAO. A. Angote
1,990 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiffs, administrators of the estate of John Gitonga, sued the Defendants, including the 1st Defendant as administrator of the estate of Wahogo Kinyanjui, over land parcel Thika Municipality/Block 33/68 (Runyua). They alleged that on 21 May 2010 the 1st Defendant agreed to sell the suit property to their late father for Kshs 2,500,000, that he paid Kshs 2,162,500 before dying in 2011, and that instead of transferring the land to his estate, the 1st to 4th Defendants transferred it to the 5th and 6th Defendants. The Plaintiffs sought a declaration of a valid contract, findings of breach and fraud, revocation of the 5th and 6th Defendants' title, registration in favour of the estate of John Gitonga, and damages. The 5th and 6th Defendants pleaded they were purchasers for value from the registered owners with a clean title. The court held that the 2010 sale agreement was entered into after the death of the registered proprietor and before confirmation of the grant, violating section 45 of the Law of Succession Act and rendering it null and void; it was also unenforceable for want of Land Control Board consent under section 6 of the Land Control Act. The confirmed grant vested the property in the 2nd to 4th Defendants, who lawfully transferred it. Under section 26(1) of the Land Registration Act, the 5th and 6th Defendants' title was prima facie indefeasible, and no fraud or misrepresentation was proved against them. The court found the 1st Defendant engaged in deliberate dishonesty with no title to pass, and advised the Plaintiffs to pursue her for a refund. The Amended Plaint was dismissed with costs.

Key legal issues

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01

Validity of the sale agreement between the 1st Defendant and the late John Gitonga

Holding

The agreement was null and void because it was entered into after the death of the registered proprietor and before confirmation of the grant, contrary to section 45 of the Law of Succession Act, and was unenforceable for want of Land Control Board consent under section 6 of the Land Control Act

Reasoning

The registered proprietor, Wahogo Kinyanjui, had died before the 2010 agreement was made, and succession proceedings only concluded with a confirmed grant in 2012. The 1st Defendant had no capacity to transact. Further, no Land Control Board consent was obtained, rendering the agreement unenforceable under the Land Control Act.

p. 3
02

Whether the 5th and 6th Defendants acquired title fraudulently

Holding

No. They purchased from the registered owners after an official search, obtained Land Control Board consent, and no evidence of fraud or misrepresentation was produced

Reasoning

The 5th Defendant conducted a search revealing the 2nd to 4th Defendants as registered owners, executed a transfer with Land Control Board consent, obtained a title deed, and paid the purchase price. Section 26(1) of the Land Registration Act renders their title prima facie indefeasible, and the Plaintiffs adduced no proof of fraud, illegality or corrupt scheme.

p. 3

Legal principles established

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  • A sale of immovable property forming part of a deceased person's estate, entered into by a person without a confirmed grant, contravenes section 45 of the Law of Succession Act and is null and void
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud, misrepresentation, or acquisition illegally, unprocedurally or through a corrupt scheme
  • A purchaser for value with a clean title, with no evidence of fraud, keeps the land; the defrauded buyer's recourse is against the fraudulent vendor for refund

Court orders

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  1. 1.The Plaintiffs' Amended Plaint is dismissed
  2. 2.Costs of the suit awarded to the Defendants

Authorities

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Legislation

  • Law of Succession Actsection 45
  • Land Control Actsection 6
  • Land Registration Actsection 26(1)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (Environment and Land Court Act); not expressly stated in the judgment

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, "Margaret Ringa P.M. Gitonga & another v Jacinta Njoki Wahogo & 6 others [2020] KEELC 2260 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2260/eng@2020-06-05

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