Brenda Nelima Kimungui & 3 others v Stephen Lumbasi Kuyi & another [2021] KEELC 4267 (KLR)
The bottom line
#A Kenyan court cancelled a land title obtained through fraud, ruling family members' occupation rights beat even a buyer who paid for the land.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction given pending/completed succession proceedings
The ELC has jurisdiction because the suit property was never listed in, nor its ownership determined in, the succession cause, and the trust claim was never litigated there.
The confirmed grant in Bungoma High Court Succession Cause No 69 of 1990 did not include the suit property, so its ownership was never determined in that cause. The plaintiffs pleaded a constructive trust which was likewise never determined, and nothing showed they were parties to the succession cause. Jurisdiction goes to the root and must be determined at the earliest opportunity.
Limitation of actions
The claim is not statute barred because the fraud was only discovered in May 2011 and the suit was filed the same year; further, limitation does not run against a fiduciary/trustee.
Although the 1st defendant was registered on 17 March 1995, the plaintiffs discovered the registration only on about 18 May 2011, and suit was filed on 31 May 2011. Section 26 of the Limitation of Actions Act postpones the limitation period in cases of fraud until discovery. Additionally, where a constructive trust is pleaded, no plea of limitation is available to a fiduciary who converted trust property.
Ownership of the suit property and fraud
NAMAKA purchased the suit property in 1972; the 1st defendant's self-registration was fraudulent, amounted to intermeddling with a deceased's estate, and his title was tainted.
The 1972 sale agreement, PW1's eyewitness evidence and DW2's admission established NAMAKA as purchaser. The 1st defendant gave contradictory evidence on his alleged contribution, discrediting him. He excluded the property from the confirmed grant and registered it a year after his mother's death, waiting to defeat the family claim. This was fraudulent intermeddling under Section 45 of the Law of Succession Act.
Bona fide purchaser status of the 2nd defendant
The 2nd defendant was not a bona fide purchaser for value without notice since the property was occupied by the plaintiffs and he failed to conduct due diligence beyond a search.
The 2nd defendant visited the property before purchase and saw the plaintiffs in occupation and doing business, yet never engaged them. Due diligence required inspection and inquiry into the occupants' interests. His conduct - promptly issuing notices and demolishing buildings - showed bad faith; he was used as a veil to conceal the 1st defendant's fraud. His title was therefore impeachable.
Customary trust and the LUFU ceremony
The 1st defendant was a mere trustee holding the title for the family; LUFU minutes could not defeat statutory rights or be used to perpetuate injustice.
Applying the Supreme Court's test in Isack M'inanga Kebia, the property having been bought by NAMAKA for the family and the plaintiffs being family members in occupation, a customary trust was presumed. Contrasting evidence on the LUFU minutes did not aid either party, and customary practices cannot be elevated above written law or invoked to perpetuate injustice.
Legal principles established
#- No plea of limitation is available to a fiduciary in an action to recover trust property which the trustee has converted to his own use.
- A thief acquires no right or interest transferable in stolen property; such a transaction is void ab initio and the property is traceable.
- Constitutional property rights do not extend to property unlawfully acquired, so titles obtained by fraud can be impeached.
- A bona fide purchaser will not be bound by interests of which he had actual, constructive or imputed notice, provided he did reasonable due diligence before purchasing.
- Where land is held for the family, a customary trust is presumed and the registered proprietor qualifies as a trustee where the claimants are family members in occupation.
Court orders
#- 1.A declaration that the registration of the 1st defendant as the owner of the land parcel NO KIMILILI/KIMILILI/2159 was unlawful, fraudulent, unprocedural and malafides and that consequently the transfer of the same to the 2nd defendant was invalid
- 2.A declaration that the land parcel NO KIMILILI/KIMILILI/2159 formed part of the property of the Estate of the late ALFRED KUYI NAMAKA and subsequently that of the Estate of his widow, and that the plaintiffs are entitled to a share thereof and the defendants hold the same in trust for them
- 3.An order for the rectification of the register to the land parcel NO KIMILILI/KIMILILI/2159 cancelling the registration of the 2nd defendant as the registered owner and substituting an entry that the same is registered in the names of the 1st defendant in trust for the plaintiffs and himself
- 4.A declaration that the 1st defendant holds the land parcel NO KIMILILI/KIMILILI/2159 in trust for the plaintiffs and himself
- 5.A permanent injunction against the 2nd defendant restraining him, his agents, servants or any other person acting under him from demolishing or doing any construction works on the premises situated upon the land parcel, forcing out the tenants, or in any manner impairing the plaintiffs and their tenants from peacefully using the premises or transacting with the said land
- 6.The 2nd defendant shall meet the plaintiffs' costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (court invoked its power to determine issues going to its jurisdiction suo motu, citing Owners of the Motor Vessel 'Lillias S' v Caltex Oil (Kenya) Ltd)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Brenda Nelima Kimungui & 3 others v Stephen Lumbasi Kuyi & another [2021] KEELC 4267 (KLR)", Case Analysis (2021). Bungoma ELC (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4267/eng@2021-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.