Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC Case No. 166 of 2012· [2022] KEELC 586 (KLR)

Mary Njeri Kariuki v Mary Wambui Kanyingi & 3 others [2022] KEELC 586 (KLR)

Environment and Land Court
24 March 2022
4,362 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

#

The court dismissed a daughter's challenge to her late mother's land transfers because she provided no proof of fraud, and had never pleaded a trust claim.

What this practically means

#

Executive summary

#
The Plaintiff, sister of the 4th Defendant and sister-in-law of the 1st to 3rd Defendants, sought cancellation of the land registers of Githunguri/Kimathi 1856, 1857, 1858 and 1859 so the parcels revert to L.R Githunguri/Kimathi/362 in the name of her deceased mother, Paulina Gachambi Kariuki, and reinstatement of a caution registered on 21st March 2005. She contended her mother held the land as trustee under a 1981 certificate of succession for her nine children, that the Defendants unlawfully removed her caution using a false decree, and that they transferred and subdivided the land after the mother's death, circumventing the Law of Succession Act. The Defendants asserted the mother was absolute owner, obtained Land Control Board consent on 22 October 2008, executed transfers dated 4 April 2010, and the transfers were registered on 10 May 2011 after her death on 15 March 2011 due to delayed stamp duty payment. They also pleaded res judicata based on a Land Disputes Tribunal award adopted by the Magistrate's court and a decree of 28 February 2007. The court framed five issues, held the suit was not res judicata, found no evidence of fraud or a forged decree, held the transfers were validly executed (equity treats that which ought to be done as done), that the caution was removed procedurally, that no trust was pleaded or established, and that the land was gifted inter vivos and thus not part of the estate. The suit was dismissed with each party bearing own costs.

Key legal issues

#
01

Whether the suit is res judicata

Holding

The suit is not res judicata despite prior tribunal, succession and High Court proceedings

Reasoning

The court applied the conjunctive elements of res judicata from the IEBC v Maina Kiai decision. It did not expressly analyse each element against the prior proceedings but concluded the bar was not made out. Prior suits (HCCC 457 of 2005 and HCCA 69 of 2006) were noted as still pending, so the issues had not been heard and finally determined.

p. 5
02

Whether the transfers by the deceased were procedural

Holding

The transfers were validly executed and registered despite being registered after the deceased's death

Reasoning

The deceased obtained Land Control Board consent on 22 October 2008, executed transfers dated 4 April 2010 (thumb-printed, witnessed by an advocate), and died on 15 March 2011 before registration on 10 May 2011 due to delayed payment of stamp duty of Kshs 100,000. Equity treats that which ought to be done as done; the transfers were validly executed.

p. 5
03

Whether the removal of the caution was fraudulent or procedural

Holding

The caution was removed procedurally pursuant to a decree; no evidence showed the decree was not genuine

Reasoning

The Tribunal's award, adopted by the Magistrate's court and reduced to a decree issued by the Deputy Registrar on 28 February 2007, ordered removal of restrictions. The Plaintiff alleged a fake decree but tendered no evidence to prove forgery; DW1 explained the decree bore the court seal and had never been set aside.

p. 5
04

Whether the deceased held the suit property in trust for the Plaintiff and her siblings

Holding

The deceased did not hold the land in trust, and the Plaintiff did not plead a trust declaration

Reasoning

The Certificate of Succession of 24 July 1981 registered Paulina Gachambi Kariuki as sole owner and did not mention any children. The Plaintiff did not appeal against it and did not seek a declaration of trust in her plaint; parties are bound by their pleadings. She was also shown to have received alternative land (Juja share No. 2566 and Githunguri/Kimathi/173).

p. 6
05

Whether the Plaintiff proved fraud against the Defendants

Holding

No evidence of fraud or forged documents was adduced

Reasoning

Applying Arthi Highway Developers Ltd v West End Butchery Ltd, the court held fraud is a serious accusation which must be distinctly pleaded and proved above a balance of probabilities. The Plaintiff's assertion that the transfers were signed after her mother's death and the decree was fake was unsupported by evidence.

p. 5

Legal principles established

#
  • Fraud must be distinctly pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt
  • The five conjunctive elements of res judicata as set out in the IEBC v Maina Kiai case
  • Equity treats that which ought to be done as done - a transfer executed before the transferor's death but registered after it remains valid
  • A gift inter vivos properly completed with Land Control Board consent removes the property from the deceased's estate

Court orders

#
  1. 1.The Plaintiff's suit is dismissed
  2. 2.Each party to bear own costs

Authorities

#

Legislation

  • Law of Succession Act
  • Land Disputes Tribunal Act (repealed)Section 7

Cases cited (2)

  • The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others
    [2017] eKLR
  • Arthi Highway Developers Ltd vs West End Butchery Ltd & 6 Others
    [2015] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to title to land (Environment and Land Court Act) - not expressly cited in the judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mary Njeri Kariuki v Mary Wambui Kanyingi & 3 others [2022] KEELC 586 (KLR)", Case Analysis (2022). ELC Case No. 166 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/586/eng@2022-03-24

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