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ELCPartially AllowedCivil Case No. 186 of 2014· [2021] KEELC 3993 (KLR)

Sylvester Ateya Wamukoya & another v Victorina Apondi Kwang’oto & 9 others [2021] KEELC 3993 (KLR)

Environment and Land Court
17 March 2021
5,266 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed land bought from the rightful family administrators stands, ordered the register corrected, and removed a restriction blocking the buyers' title.

What this practically means

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Executive summary

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The Plaintiffs sued ten Defendants seeking transfer of seven acres carved from L.R No. Marachi/Elukongo/1770, damages, refund of survey fees, revocation of Succession Cause No. 68 of 2009 and rectification of the register. They pleaded they purchased 5 acres in 2012 and 1.5 acres in 2014 from the 1st and 2nd Defendants, who held the grant in Succession Cause No. 62 of 2004 over the estate of Okhuya Namuteche. By a consent adopted by the court, the suit against the 1st, 2nd, 7th and 8th Defendants was withdrawn. The contest was therefore with the 3rd, 4th, 5th, 6th, 9th and 10th Defendants. The 3rd and 4th Defendants claimed family allocations of 9 and 24½ acres respectively and had placed a restriction on the title, obtained a second grant, and subdivided the land into parcels 3406 and 3407. The court framed five issues: capacity of the 1st and 2nd Defendants to sell, lifting of the restriction, cancellation of post-27th April 2010 green card entries, and costs. Applying section 66 of the Law of Succession Act, the court held the 1st and 2nd Defendants ranked ahead in priority and had capacity to sell, bolstered by the unappealed Butula Land Disputes Tribunal award adopted as a court order. The court found the 3rd and 4th Defendants had misrepresented facts to procure the second grant and subdivision, justifying rectification under sections 78(2) and 80 of the Land Registration Act. The court ordered the restriction lifted as to the Plaintiffs' 7 acres, cancellation of post-2010 register entries, surrender of titles for parcels 3406 and 3407, subdivision and transfer of 7 acres to the Plaintiffs, a permanent injunction against the 3rd to 6th Defendants, and refund of Kshs.51,000 survey fees by the 9th Defendant. General damages were refused as unproved. The 3rd to 6th Defendants were ordered to pay the Plaintiffs' costs jointly and severally.

Key legal issues

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01

Whether the 1st and 2nd Defendants were beneficiaries and had capacity to sell the suit land

Holding

The 1st and 2nd Defendants, as surviving daughter and daughter-in-law of the registered proprietor, held the grant and were awarded the land by the Butula Land Disputes Tribunal, hence had capacity to sell to the Plaintiffs in 2012

Reasoning

All witnesses confirmed the 1st and 2nd Defendants were the daughter and daughter-in-law of the deceased proprietor. Under section 66 of the Law of Succession Act they ranked ahead of the 3rd and 4th Defendants (nephew and brother) in petitioning for grant. The Tribunal award in their favour was adopted as a court order and neither appealed nor reviewed, making them sole beneficiaries with capacity to sell.

p. 5
02

Whether the restriction placed by the 3rd and 4th Defendants should be lifted

Holding

Yes; the restriction could not bar completion of the subdivision indefinitely and was ordered lifted on the 7-acre portion

Reasoning

The 3rd Defendant gave no evidence that his alleged share could only be carved from the portion sold to the Plaintiffs. Under sections 76(2) and 78(2) of the Land Registration Act a restriction may endure only for a period, event or further order, and the court may order its removal. The law does not contemplate indefinite restrictions.

p. 5
03

Whether entries on the green card after 27th April 2010 should be cancelled

Holding

Yes; the 3rd and 4th Defendants misrepresented facts to the Family Court and the Land Registrar, procuring a subdivision based on a grant obtained to the exclusion of the rightful administrators

Reasoning

The registered title was in the deceased's name and the 1st and 2nd Defendants already held the grant. The 3rd and 4th Defendants, ranking lower in priority, should have sought revocation of the existing grant instead of obtaining a fresh one. Their conduct amounted to misrepresentation justifying rectification under section 80 of the Land Registration Act.

p. 5
04

Whether the Plaintiffs proved their claims against the remaining Defendants

Holding

The Plaintiffs proved the claim for removal of the restriction, rectification of the register and refund of survey fees, but not general damages

Reasoning

In light of the consent between the Plaintiffs and the 1st, 2nd, 7th and 8th Defendants and the analysis of the evidence, the court found the claim proved against the 3rd, 4th, 5th and 6th Defendants as regards the restriction and rectification. The 9th Defendant did not defend the suit, so the claim for refund of Kshs.51,000 succeeded, but general damages were not proved.

p. 6

Legal principles established

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  • Where a deceased person is survived by spouse or children, other relatives are excluded from the intestate estate in the order of priority for administration under section 66 of the Law of Succession Act
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or where acquired illegally, unprocedurally or through a corrupt scheme (Section 26(1), Land Registration Act)
  • Fraud must be distinctly alleged and distinctly proved; general allegations are insufficient
  • The court may order rectification of the register where a registration was obtained, made or omitted by fraud or mistake (Section 80, Land Registration Act)
  • Restrictions on title are not intended to remain indefinitely and the court may order their removal under Section 78(2) of the Land Registration Act

Court orders

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  1. 1.Order directed at the Land Registrar, Busia to lift immediately the restriction placed on title Marachi/Elukongo/1770 by the 3rd and 4th Defendants to allow the Plaintiffs get title for their 7 acres portion purchased
  2. 2.The restriction to remain registered on the remainder portion after subdividing the suit title to carve the 7 acres pending final determination of Busia ELC case no. 130 of 2015
  3. 3.Order directing the Land Registrar Busia to amend the register of Marachi/Elukongo/1770 cancelling all entries made after the 27th of April, 2010
  4. 4.The 3rd & 4th Defendants to surrender the Titles issued for L.R No. Marachi/Elukongo/3406 and 3407 for cancellation within 21 days of the judgment, failing which the same shall stand revoked
  5. 5.The 1st and 2nd Defendants to forthwith subdivide and transfer a seven (7) acres portion carved out of L.R No. Marachi/Elukongo/1770 in favour of the Plaintiffs
  6. 6.Order of permanent injunction issued against the 3rd to 6th Defendants restraining them from interfering with the plaintiffs' use and occupation of the 7-acre portion comprised in L.R No. Marachi/Elukongo/1770
  7. 7.Prayer (c) of the amended Plaint allowed: the 9th Defendant to refund survey fees of Kshs.51,000/- to the Plaintiffs within 30 days from service of the decree, in default the Plaintiffs at liberty to execute
  8. 8.The 3rd, 4th, 5th & 6th Defendants to pay jointly and severally the costs of this suit awarded to the Plaintiffs

Authorities

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Legislation

  • Law of Succession ActSection 66
  • Probate and Administration RulesRule 7(7)
  • Land Registration ActSection 76(2)
  • Land Registration ActSection 78(2)
  • Land Registration ActSection 26(1)
  • Land Registration ActSection 80

Cases cited (11)

  • In the matter of the estate of Joshua Orwa Ojode (deceased), Nairobi Succession Cause No. 2015
  • Estate of George Muriithi Gitahi (deceased)
    (2019) eKLR
  • Benjamin Maiyo vs. Barnaba Kichwen
    (2013) eKLR
  • Daudi Ledama Morintat vs. Mary Christine Karie & 2 others
    (2017) eKLR
  • Joyce Waithira Mwangi vs. Thika Land Registrar
    (2018) eKLR
  • Esther Wangari Maina vs. Julius Kiruma Kariuki
    (2019) eKLR
  • Insurance Company of East Africa vs The Attorney General & 3 Others
    HCCC No. 135 of 1998
  • Wallingford v Mutual Society
    (1880) 5 App. Cas. 685
  • Garden Neptune V Occident
    [1989] 1 Lloyd's Rep. 305
  • Lawrence V Lord Norreys
    (1880) 15 App. Cas. 210
  • Davy V Garrett
    (1878) 7 Ch.D. 473
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (court resolved land title, restriction and rectification 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, "Sylvester Ateya Wamukoya & another v Victorina Apondi Kwang’oto & 9 others [2021] KEELC 3993 (KLR)", Case Analysis (2021). Civil Case No. 186 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3993/eng@2021-03-17

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