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ELCDismissedELC Appeal No. 56 of 2018· [2021] KEELC 3668 (KLR)

Joseph Riungu M’Kirika (Suing as the Administrator of the estate of M’Kirika M’Nanjau-Deceased) v Gerald Ntari M’Mutea (Suing as the Administrator of the estate of M’Ritara M’Tuambae-Deceased) [2021] KEELC 3668 (KLR)

Environment and Land Court at Meru
21 April 2021
4,640 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 Kenyan landowner lost 9 acres because his title came from a court judgment that had been cancelled—proof of purchase matters more than a paper title.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Meru against the judgment of H.N. Ndung'u, C.M delivered on 8 November 2018 in Meru CM ELC No. 268 of 1985. The underlying dispute concerned parcel Abogeta/Nkachie/828 (21 acres), allegedly assembled through purchases of land from the respondent's grandfather between 1978 and 1983. The trial court had awarded the appellant's father's estate 12 acres and reverted 9 acres to the respondent's father's estate, with no orders as to costs. The appellant challenged the excision of the 9 acres, arguing his father held an indefeasible title, that the trial court acted without a counterclaim, and that section 3(3) of the Law of Contract Act did not apply to pre-2003 oral contracts. The court, applying its first appellate duty, held that the appellant's father's title derived from an exparte judgment of 1991 which was set aside by a ruling of 25.8.1998, a setting aside upheld on appeal in Meru HC Civil Appeal No. 79 of 1998; the title was therefore irregular and indefeasibility could not be invoked. The court further found the record of appeal incomplete and disordered - containing proceedings from an unrelated case and missing the crucial exparte proceedings - rendering the appeal defective and dead on arrival. It also found the appellant's evidence inconsistent, proving at most 12 acres, and held that property never belonging to a deceased cannot vest in his estate. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Effect of the ruling of 25.8.1998 setting aside the exparte judgment

Holding

The exparte judgment of 1991 and all subsequent orders, including the transfer and title, were set aside, so the appellant's father acquired no rights through them

Reasoning

The then defendant's application dated 29.7.1998 to set aside the exparte judgment was allowed on 25.8.1998, and an appeal to the High Court (Meru HC Civil Appeal No. 79 of 1998) was dismissed. The title held by the appellant's father was therefore born of proceedings that were nullified, and could not ground indefeasibility under the Land Registration Act.

p. 4
02

Competence of the appeal given the record

Holding

The appeal was defective and 'dead on arrival' for want of the requisite documents; the record was incomplete, in disarray and contained proceedings from a different case

Reasoning

The supplementary record contained proceedings apparently belonging to Meru CMCC No. 265 of 1986 (a property damage case), the crucial exparte proceedings were missing, and the appellant's documentary exhibits were not availed. Following Bwana Mohamed Bwana, an appeal without the requisite record is incompetent and divests the court of jurisdiction.

p. 4
03

Whether the appellant proved purchase of 21 acres

Holding

The appellant failed to prove purchase of 21 acres on a balance of probabilities; only 12 acres (5 undisputed and 7 under a written agreement) were supported, as the trial court found

Reasoning

The appellant's pleadings, recorded statement and oral testimony were inconsistent - pleading 5, 16 and 7 acres (28 acres total), while testifying to 5, 7, 2 and 7 acres and admitting his agreements showed only 12 acres. Sections 107-109 of the Evidence Act placed the burden of proving the 21-acre purchase on the appellant.

p. 5
04

Whether the trial court could order reversion of 9 acres absent a counterclaim

Holding

It mattered not that the respondent filed no counterclaim; the appellant's amended plaint introduced a new cause of action seeking protection of an irregular title, and property not belonging to a deceased cannot vest in his estate

Reasoning

The court held the excision of 9 acres was justified because the appellant's father's title was irregular, and relied on authority that non-disclosure of material facts and third-party claims in succession proceedings offends utmost good faith; what did not belong to the father cannot belong to his estate.

p. 4

Legal principles established

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  • A first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions while making allowance for not having seen or heard the witnesses
  • A title obtained through proceedings that were nullified cannot support a claim of indefeasibility
  • An incomplete record of appeal renders an appeal incompetent and deprives the court of jurisdiction
  • Property that did not belong to a deceased person cannot pass to his estate through succession distribution

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal to the respondent

Authorities

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Legislation

  • Limitation of Actions Act
  • Law of Contract Actsection 3(3), section 3(7)
  • Land Registration Actsections 24, 25, 26, 28
  • Evidence Actsections 107-109
  • Constitution of Kenya, 2010Article 40(6)

Cases cited (10)

  • Selle and Another v Associated Motor Boat Company Ltd & Others
    [1968] EA 123
  • Arthi Highway Developers Limited v West End Butchery Limited & Others
    (2015) eKLR
  • Esther Nyaguthii Muriuki Mathenge v Phoebe Muchiri Warui
    [2018] eKLR
  • Anderson Omondi Owandho (suing as the legal rep. of the Estate of Thomas Owandho Rajwai (Deceased)) v Augustinos Ondiek
    [2017] eKLR
  • Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 others
    [2015] eKLR
  • Chege v Suleiman
    [1988] eKLR
  • Kilonzo David t/a Silver Bullet Bus Company v Kyalo Kiliku & Another
    [2018] eKLR
  • Re Estate of Julius Ndubi Javan (Deceased)
    2018 eKLR
  • Re Estate of M'Twerandu M'Murungi (Deceased)
    [2020] eKLR
  • Leonard Kimeu Mwanthi v Rukaria M'Twerandu M'Iriungi
    [2018] eKLR
On appeal from
Chief Magistrate's Court at Meru
Meru CM ELC No. 268 of 1985
Jurisdiction invoked
First appellate jurisdiction over the magistrates' court (Environment and Land Court Act)

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, "Joseph Riungu M’Kirika (Suing as the Administrator of the estate of M’Kirika M’Nanjau-Deceased) v Gerald Ntari M’Mutea (Suing as the Administrator of the estate of M’Ritara M’Tuambae-Deceased) [2021] KEELC 3668 (KLR)", Case Analysis (2021). ELC Appeal No. 56 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3668/eng@2021-04-21

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