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ELCDismissedNakuru ELC Case (number not stated in judgment)· [2021] KEELC 2987 (KLR)

Elizabeth Wanjiku Njoka (Suing as the Legal Representative of Alice Kahaki (Deceased) v Oliver Yachama Mateche & 2 others [2021] KEELC 2987 (KLR)

Environment and Land Court
3 June 2021
DOD. O. Ohungo
3,024 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a landowner's trespass suit because property registered to an estate administrator really belongs to the succession court's decision.

What this practically means

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Executive summary

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The plaintiff, administrator of the estate of Alice Kahaki Njoka under Nakuru HC Succession Cause No. 16 of 1984, sued three defendants operating open-air garages on Nakuru Municipality/Block 2/531, seeking a declaration of trespass, vacant possession, a permanent injunction, mesne profits/general damages, costs and interest. She held a certificate of lease dated 5th December 2016 registered 'as an administrator to the Githunguri estate of Alice Njoka'. The defendants admitted occupation but claimed they entered under a lease dated 28th September 2014 with Joseph Njuguna Njoka acting on behalf of the estate of the plaintiff's late father, Philip Njoka Kamau, whose will's executor (Juma Kiplenge, DW3) testified he instructed the lease. The court framed three issues: ownership, trespass, and reliefs. On ownership, it held the plaintiff's proprietorship was only as administrator, transient and subject to succession proceedings, with the question of which estate owns the property pending in HC Misc. Applic. No. 33 of 2016. On trespass, it found the defendants entered pursuant to a lawful agreement before the plaintiff became administrator, paid rent (part of which the plaintiff received), and that questions of intermeddling were for the family court under the Law of Succession Act. The suit was dismissed with each party bearing own costs. Authorities cited by the parties included In re Estate of Haji Mohamed, Benerdette Magoma Nyakabaria and Fredrick Korir, none adopted by the court.

Key legal issues

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01

Nature of plaintiff's proprietorship of the suit property

Holding

The plaintiff holds the property only as administrator of the estate of Alice Kahaki Njoka; she does not own it personally and her proprietorship is subject to confirmation of grant and determination of which estate owns the property.

Reasoning

The certificate of lease registers the plaintiff 'as an administrator to the Githunguri estate of Alice Njoka'. Section 26(1) of the Land Registration Act makes the certificate prima facie evidence of absolute ownership, but subject to encumbrances and conditions endorsed on the certificate. The plaintiff conceded her grant is unconfirmed and that ownership of the property between her mother's and father's estates is pending in HC Misc. Applic. No. 33 of 2016.

p. 3
02

Whether the defendants are trespassers

Holding

No trespass is established; the defendants entered under a lease agreement of 28th September 2014 made with Joseph Njuguna Njoka on behalf of the estate of Philip Njoka Kamau, and paid rent which the plaintiff partly received.

Reasoning

The defendants entered the property in 2014, two years before the plaintiff obtained letters of administration, and she knew the 1st defendant was in occupation and paying rent. The executor of the father's will confirmed he instructed the lease. The validity of the agreement and whether Joseph Njuguna Njoka intermeddled are matters for the family court under the Law of Succession Act.

p. 3

Legal principles established

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  • Proprietorship in the capacity of administrator of an estate is transient and subject to succession proceedings; a certificate of title is prima facie evidence of ownership subject to conditions endorsed on the certificate
  • Where the ownership of land between two estates is pending in succession proceedings, the land dispute is an offshoot of the succession dispute to be resolved in the family court under the Law of Succession Act

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Each party to bear own costs of the suit

Authorities

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Legislation

  • Land Registration ActSections 25, 26(1), 27
  • Law of Succession ActSection 45
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActNot specified

Cases cited (3)

  • In re Estate of Haji Mohamed (Deceased)
    [2016] eKLR
  • Benerdette Magoma Nyakabaria v Bonareri Asiago & 3 others
    [2016] eKLR
  • Fredrick Korir v Soin United Women Group (Sued through Eunice Towett, Jane Mwolomet, Lucio Chebocho
    [2018] eKLR
Jurisdiction invoked
Original civil jurisdiction (Environment and Land Court) - not stated in judgment with specific provision

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, "Elizabeth Wanjiku Njoka (Suing as the Legal Representative of Alice Kahaki (Deceased) v Oliver Yachama Mateche & 2 others [2021] KEELC 2987 (KLR)", Case Analysis (2021). Nakuru ELC Case (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2987/eng@2021-06-03

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