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ELCPartially AllowedBungoma High Court Civil Suit (plaint dated 18th July 2017, amended 12th October 2018)· [2021] KEELC 3045 (KLR)

Petronilla Nekoye Kong’ani v John Barasa Wanyama & 12 others [2021] KEELC 3045 (KLR)

High Court of Kenya
3 June 2021
4,514 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Bungoma court cancelled fraudulent land transfers made against a widow's estate, ordering eviction, title rectification, and KShs 500,000 trespass damages.

What this practically means

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Executive summary

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The plaintiff, widow and administratrix of the estate of Aineah Wabwile Kong'ani, sued thirteen defendants over land parcels WEST BUKUSU/SOUTH MATEKA/800 and /629, registered in the deceased's name since 1973. Following protracted litigation - including a magistrates' court eviction order against the Wanyama family, a succession cause in which Gikonyo J dismissed revocation of the plaintiff's grant, and a Court of Appeal decision (Civil Appeal No 271 of 2013) conclusively affirming the suit properties formed part of the deceased's estate - the 1st and 2nd defendants fraudulently transferred parcel 629 to themselves in November 2011 using a false probate from an unrelated Nairobi succession cause, sub-divided it into parcels 4453 and 4454, and transferred 4454 to the 13th defendant. They also inflated the acreage from 6.4 to 11.2 hectares. The claim proceeded ex parte after defendants and their counsel failed to attend the hearing. The court held the claim was not statute barred since the fraud occurred in 2011 and suit was filed in 2017; fraud was specifically pleaded and proved; transfers procured by fraud were void ab initio, a thief acquiring no transferable interest. The court declared the defendants' activities fraudulent and an intermeddling with the estate, ordered rectification of the register, restoration of original acreages, eviction within three months with police assistance only if resistance arises, a permanent injunction, Kshs 500,000 damages for trespass, and costs to the plaintiff. Damages for loss of user and destruction of amenities were refused for failure to plead and prove special damages.

Key legal issues

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01

Whether the claim was statute barred under Section 7 of the Limitation of Actions Act

Holding

The plea of limitation fails; the suit filed on 21st July 2017 was within 12 years of the 2011 fraudulent transfer

Reasoning

Section 7 bars actions to recover land after twelve years from accrual of the right of action. The fraudulent registration and sub-division occurred in 2011 according to the documents, and the suit was first filed on 21st July 2017. The claim was therefore brought within the limitation period and the defence plea was not well taken.

p. 4
02

Whether fraud against the 1st, 2nd and 13th defendants was proved

Holding

Yes. The uncontroverted evidence, read against the prior conclusive determinations, established that the 1st and 2nd defendants fraudulently procured transfer and sub-division of parcel 629, and the transfer to the 13th defendant was void ab initio

Reasoning

The Court of Appeal in Civil Appeal No 271 of 2013 had conclusively affirmed that the suit properties formed part of the deceased's estate. The 1st and 2nd defendants nevertheless procured the 2011 transfer of parcel 629 using a false probate from a succession cause unrelated to the deceased, then sub-divided it and transferred parcel 4454 to the 13th defendant, who took no valid interest. Acreage was fraudulently inflated from 6.4 to 11.2 hectares.

p. 5
03

Availability of damages for loss of user and destruction of amenities

Holding

Refused; special damages must be specifically pleaded and proved with quantification

Reasoning

The plaintiff pleaded the destruction of a sugarcane plantation and loss of amenities but did not quantify the loss or name the amenities destroyed. Throwing figures at the Court without proof cannot sustain an award of special damages; the Court cannot award what the plaintiff is incapable of proving.

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 the facts
  • A thief acquires no right or interest which is transferable in the stolen property
  • Damages for trespass are available per se without proof of actual loss
  • Pleadings must contain only a summary of material facts, not evidence

Court orders

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  1. 1.A declaration that the defendants' activities with regard to land parcels NO WEST BUKUSU/SOUTH MATEKA/800 and 629 were fraudulent, illegal and amounted to intermeddling with the property of the deceased AINEAH WABWILE KONG'ANI
  2. 2.The LAND REGISTRAR and COUNTY SURVEYOR BUNGOMA directed to rectify the register by cancelling the registration of JOHN BARASA WANYAMA, MUSA WANYONYI WANJALA and DORCAS NAFULA TONISIO from land parcels NO WEST BUKUSU/SOUTH MATEKA/629, 4453 and 4454 and restore parcel 629 to the name of AINEAH WABWILE KONG'ANI
  3. 3.The LAND REGISTRAR and COUNTY SURVEYOR directed to re-survey and restore land parcel NO WEST BUKUSU/SOUTH MATEKA/629 to its original acreage of 6.4 Hectares and parcel 800 to its original 7.6 Hectares
  4. 4.The defendants and all claiming through them directed to vacate land parcels NO WEST BUKUSU/SOUTH MATEKA 629, 800, 4453 and 4454 within three (3) months, in default they be evicted; police assistance to be sought to maintain law and order in case of resistance
  5. 5.Defendants, their agents, servants, employees and all claiming under them restrained from re-entering the suit parcels
  6. 6.Kshs. 500,000/= awarded as damages for trespass
  7. 7.Plaintiff awarded costs of the suit

Authorities

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Legislation

  • Constitution of KenyaArticle 27(5)
  • Civil Procedure RulesOrder 2 Rule 3(1)
  • Civil Procedure RulesOrder 21 Rule 28
  • Limitation of Actions ActSection 7
  • National Police Service ActSection 24

Cases cited (6)

  • CMC Aviation Ltd v Cruis Air Ltd No 1
    1978 KLR 103
  • Vijay Morjaria v Nansingh Madhusingh Darbar & Another
    2000 eKLR
  • Kinyanjui Kamau v George Kamau
    2015 eKLR
  • Ndolo v Ndolo
    2008 1 KLR [G & F] 742
  • Jane Gachoki Gatheca v Priscilla Nyawira Gitungu & Another
    2008 eKLR
  • Kamau Mucuha v The Ripples Ltd
    1993 KLR 35
Jurisdiction invoked
Original civil jurisdiction of the High Court in claims relating to title to land; unlimited original jurisdiction under Article 165 of the Constitution

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, "Petronilla Nekoye Kong’ani v John Barasa Wanyama & 12 others [2021] KEELC 3045 (KLR)", Case Analysis (2021). Bungoma High Court Civil Suit (plaint dated 18th July 2017, amended 12th October 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3045/eng@2021-06-03

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