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)
The bottom line
#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
#Executive summary
#Key legal issues
#Effect of the ruling of 25.8.1998 setting aside the exparte judgment
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
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.
Competence of the appeal given the record
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
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.
Whether the appellant proved purchase of 21 acres
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
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.
Whether the trial court could order reversion of 9 acres absent a counterclaim
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
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 2.Costs of the appeal to the respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.