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ELCAllowedOriginating Summons dated 29th April 2019 (Nyandarua/Olkalaou/Central land parcels)· [2021] KEELC 4720 (KLR)

Peter Kimani Mungai v Rahab Wambui Kimani [2021] KEELC 4720 (KLR)

Environment and Land Court
13 January 2021
MOM.C. Oundo
2,454 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Land registered to a dead person years after death, with no succession process or valid Will, can have those titles cancelled by a Kenyan court.

What this practically means

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Executive summary

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The Plaintiff, holding a Limited Grant of Letters of Administration ad litem over the estate of his late father Moses Mungai Kiriro, filed an Originating Summons seeking a declaration that all transactions over land parcels Nyandarua/Olkalaou/Central/2518, 3557, 3558, 1052 and 2520 were null and void, on the ground that they were conducted without following the law of succession. He testified that after his father's death in 2005 the Defendant, his sister, hid the title documents, and searches showed the land remained registered to the deceased until 2014/2015 when the Defendant and others were registered and some land sold. The Defendant contended that their father died testate, had distributed the land during his lifetime through transfers effected at the District Officer's office, and produced a document she described as a Will dated 25th February 1994. The court summoned the Land Registrar, who produced green cards and mutation forms. The court framed the sole issue as whether the Defendant's title should be impeached. It found that no succession proceedings had been conducted or concluded, no valid Will had been adduced - the document relied on being mere lamentations about the Plaintiff's behaviour - and no explanation was given for the registrations effected more than nine years after the deceased's death. Applying Section 26 of the Land Registration Act, the court held the titles impeachable, declared them improperly procured, null and void, and ordered their cancellation and reversion to the deceased's proprietorship. As the dispute was between family members, no orders as to costs were made.

Key legal issues

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01

Whether the deceased died testate and his estate had been distributed by Will

Holding

The document produced as a Will was not a legal instrument distributing the estate; the estate had not been distributed and the Defendant's claim of testate succession failed.

Reasoning

The court examined the document the Defendant described as a Will dated 25th February 1994 and found it contained only the deceased's complaints about the Plaintiff's behaviour. No Will was adduced as evidence to support the claim that the estate had been distributed. Consequently, registrations effected more than nine years after the deceased's death, without any succession proceedings, could not stand.

p. 3
02

Whether the Defendant's titles to the suit parcels were impeachable under Section 26 of the Land Registration Act

Holding

The titles were improperly procured, null and void, and were cancelled and reverted to the deceased's name.

Reasoning

It had not been shown how the Defendant and others got registered as proprietors more than nine years after the deceased's death, with no succession proceedings conducted or concluded. Under Section 26(1)(b) of the Land Registration Act, title protection is lost where the certificate is acquired illegally, unprocedurally or through a corrupt scheme. The court found the titles impeachable and ordered cancellation.

p. 3

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, but the protection is removed where the title is procured through fraud or misrepresentation, or acquired illegally, unprocedurally or through a corrupt scheme.

Court orders

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  1. 1.The titles to Nyandarua/Olkalaou/Central/2518, 3557, 3558, and 2520 were declared improperly procured, null and void and cancelled, to revert to the proprietorship of Moses Mungai Kiririo
  2. 2.No orders as to costs

Authorities

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Legislation

  • Registered Land Act (CAP 300)null
  • Land Registration ActSection 26(1)(a) and (b)

Cases cited (1)

  • Alice Chemutai Too v Nickson Kipkurui Korir & 2 others
    [2015] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land title disputes; Plaintiff suing under Limited Grant of Letters of Administration ad litem in Probate and Administration Cause No. 27 of 2018

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, "Peter Kimani Mungai v Rahab Wambui Kimani [2021] KEELC 4720 (KLR)", Case Analysis (2021). Originating Summons dated 29th April 2019 (Nyandarua/Olkalaou/Central land parcels). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4720/eng@2021-01-13

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