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ELCDismissedELC Case No. 459 of 2012· [2021] KEELC 812 (KLR)

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)

Environment and Land Court
18 November 2021
7,669 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff, widow and personal representative of the estate of Eric William Mbela, sued the 1st Defendant (her mother-in-law) and the 2nd Defendant (purchaser) seeking declarations that LR No. 209/8336/98 Loresho was family property held in trust for her and her children, cancellation of the transfer to the 2nd Defendant, registration of the property in her name, and a permanent injunction against eviction. The property was registered in the names of the deceased and the 1st Defendant as joint tenants in 2009, having been purchased with funds from the 1st Defendant's Citibank account. The deceased died on 31st December 2010; his death certificate was registered against the title on 12th April 2011, and the 1st Defendant sold the property to the 2nd Defendant for Kshs.21,000,000/= on 17th August 2011. The 2nd Defendant counterclaimed for vacant possession. The court framed seven issues and held: the 1st Defendant solely purchased the property, discharging the evidential burden under Sections 107-108 of the Evidence Act; on the death of a joint tenant the property automatically vested in the survivor under Sections 60 and 91(4) of the Land Registration Act, by the doctrine of jus accrescendi, and never formed part of the deceased's estate; no trust arose, and the Plaintiff's alleged contribution of Kshs.300,000/= and undocumented renovations were not proved; the fraud allegations were not pleaded and proved to the required standard, and the 2nd Defendant, which conducted a search and paid valuable consideration, acquired good title. The Plaintiff's suit was dismissed and the 2nd Defendant's counterclaim allowed: vacant possession and a mandatory injunction to vacate within 120 days, failing which eviction by court bailiff, plus a permanent injunction restraining interference. The court sympathised with the Plaintiff's predicament and ordered each party to bear their own costs.

Key legal issues

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01

Whether the suit property was solely purchased by the 1st Defendant

Holding

The court found the 1st Defendant solely purchased the property and discharged the onus of proof

Reasoning

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.

p. 6
02

Whether the property vested in the 1st Defendant upon the death of the joint tenant

Holding

The property automatically vested in the 1st Defendant as surviving joint tenant upon registration of the death certificate

Reasoning

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.

p. 6
03

Whether the 1st Defendant held the property in trust for the Plaintiff and her children

Holding

No trust was established; the property was not free property of the deceased and thus not part of his estate

Reasoning

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.

p. 8
04

Whether the sale and transfer to the 2nd Defendant was fraudulent

Holding

The allegations of fraud were not substantiated; the 2nd Defendant acquired good title as a purchaser after due diligence

Reasoning

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.

p. 9
05

Whether the 2nd Defendant is entitled to vacant possession under the counterclaim

Holding

The counterclaim succeeds; the registered owner is entitled to vacant possession and the Plaintiff is rendered a trespasser

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.The Plaintiff's suit is dismissed
  2. 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. 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. 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. 5.Each party to bear own costs

Authorities

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Legislation

  • Registration of Titles Act (repealed)Sections 23 and 64
  • Land Registration Act, 2012Sections 24, 25, 60 and 91(4)
  • Land Act, 2012general
  • Evidence Act, Cap 80Sections 107-108, 109, 112
  • Succession Act, Cap 60Section 2
  • Registered Land Act (repealed)Section 118
  • Trustee Actgeneral

Cases cited (15)

  • Charles Kiraithe Kiarie & 2 Others v Administrators of the Estate of John Wallace Mathatre (deceased) & 5 Others
    [2013] eKLR
  • Isabel Chelangat v Samuel Tiro Rotich & 5 Others
    [2012] eKLR
  • Re Estate of Donato Sciacovelli (Deceased)
    [2021] eKLR
  • Irungu v Thayu
    (2004) eKLR
  • Re Estate of Joseph Kangari Muhu (Deceased)
    [2015] eKLR
  • East Africa Railways Corporation v Karangi
    (1988) KLR 108
  • Moya Drift Farm Limited v Theuri
    (1973) EA 114
  • Anne Wambui Nderitu vs Joseph Kiprono Rapkoi & Another
    [2005] 1 EA 334
  • Re Estate of the late Dorica Lumire Mapesa alias Dorika Mapesa Lumire deceased
    [2018] eKLR
  • Cornelius Nyabuto Mogaka vs Fredrick Nyabuto Mogaka & 2 others
    [2011] eKLR
  • Re Estate of Josephine Mumbua Mehlaff-Deceased
    [2015] eKLR
  • Twalib Hatayan & Another vs Said Saggar Ahmed Al Heidy & Others
    [2015] eKLR
  • Gichinga Kibutha vs Caroline Nduku
    [2018]
  • Athi Highway Developers Ltd vs West End Butchery Ltd & 6 Others
    [2015] eKLR
  • Peter Kamau Ikigu vs Barclays Bank of Kenya Ltd & Another
    [2003] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (land disputes)

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, "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.