Josephine Egwa Mbela (Suing as a personal Representative of the Estate of Eric William Mbela (Deceased) v Elizabeth Wanjiku Muchira & another [2021] KEELC 812 (KLR)
The bottom line
#A Kenyan court ruled that property owned jointly passes entirely to the surviving joint owner on death, so the widow lost her claim and must vacate.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit property was solely purchased by the 1st Defendant
The court found the 1st Defendant solely purchased the property and discharged the onus of proof
The 1st Defendant produced bank transfer records from her Citibank account covering the full purchase price of Kshs.5,200,000/=. The Plaintiff's claim that she gave Kshs.300,000/= towards the purchase was unsupported by documents and rested only on her word. The court found the purchase price was exclusively paid by the 1st Defendant.
Whether the property vested in the 1st Defendant upon the death of the joint tenant
The property automatically vested in the 1st Defendant as surviving joint tenant upon registration of the death certificate
Sections 60 and 91(4) of the Land Registration Act provide that on the death of a joint tenant, that tenant's interest vests in the surviving tenant or tenants. Once the death certificate was registered in April 2011, the 1st Defendant became absolute owner. The principle of survivorship excludes the property from succession, and no severance of the joint tenancy was shown.
Whether the 1st Defendant held the property in trust for the Plaintiff and her children
No trust was established; the property was not free property of the deceased and thus not part of his estate
The court applied the law on resulting and constructive trusts but found no basis for either. Section 2 of the Succession Act defines estate as free property of a deceased person; property held in joint tenancy merges with the surviving tenant's interest on death and cannot be claimed by the deceased's spouse.
Whether the sale and transfer to the 2nd Defendant was fraudulent
The allegations of fraud were not substantiated; the 2nd Defendant acquired good title as a purchaser after due diligence
Fraud must be distinctly pleaded and proved above a balance of probabilities. The 2nd Defendant conducted a search, confirmed the 1st Defendant was registered owner, paid Kshs.21,000,000/= and there was no noting of any trust on the register. The Plaintiff's occupation was known and she had given undertakings to vacate.
Whether the 2nd Defendant is entitled to vacant possession under the counterclaim
The counterclaim succeeds; the registered owner is entitled to vacant possession and the Plaintiff is rendered a trespasser
Having acquired good title, the 2nd Defendant is entitled to the counterclaim prayers. The court relied on authority that a person without an enforceable legal or equitable right over the property, absent a restraining court order, is a trespasser who may be evicted using reasonable force.
Legal principles established
#- On the death of a joint tenant, the deceased's interest vests in the surviving joint tenant by the right of survivorship (jus accrescendi) and the property does not form part of the deceased's estate
- Fraud is a serious accusation which must be distinctly pleaded and proved to a standard above a balance of probabilities
- The legal burden of proof lies on the party who substantially asserts the affirmative of the issue
Court orders
#- 1.The Plaintiff's suit is dismissed
- 2.The Plaintiff is directed to give vacant possession of LR NO 209/8336/98 Loresho to the 2nd Defendant within one hundred and twenty (120) days from the date of judgment, failure to which the Plaintiff be evicted with the assistance of a court bailiff
- 3.An order of mandatory injunction is issued directing the Plaintiff to vacate the suit property within one hundred and twenty (120) days, failure to which the Plaintiff be evicted with the assistance of the court bailiff
- 4.An order of permanent injunction is issued restraining the Plaintiff, by herself, servants, agents or otherwise from remaining on, entering upon, trespassing upon and/or interfering with the 2nd Defendant's access to, use of and quiet possession of the suit property
- 5.Each party to bear own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (land disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josephine Egwa Mbela (Suing as a personal Representative of the Estate of Eric William Mbela (Deceased) v Elizabeth Wanjiku Muchira & another [2021] KEELC 812 (KLR)", Case Analysis (2021). ELC Case No. 459 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/812/eng@2021-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.