Solomon Mwendwa Joshiah v Kaviti Kalani [2022] KEELC 646 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that a registered landowner's title cannot be challenged without solid proof of fraud, and grandchildren have no automatic right to inherit grandparents' land.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent held Mutomo/Mwala/1124 in trust (customary or constructive) for the family of Peter Lutu Moki
No trust was established; there was no express trust and no circumstances warranting implication of a constructive or customary trust
The court examined the considerations surrounding registration. The adjudication process under the Land Adjudication Act was elaborate and participated in by the family; no evidence showed objection, that parcel 1113 included parcel 1124, or that boundaries were altered. Applying Mwangi v Mwangi and Peter Ndungu Njenga, intention to create a trust was not established, and the appellant identified no overriding interests.
Whether the Respondent's title could be challenged under section 26(1) of the Land Registration Act
No; the Appellant produced no evidence of fraud, misrepresentation, illegality, unprocedurality or corrupt scheme, and none of the adjudication offices allegedly involved were joined or called as witnesses
Fraud must be specifically pleaded and distinctly proved to a standard above balance of probabilities. Merely asserting that land ought to have been registered in trust does not amount to proof of fraud. The title obtained through adjudication therefore remains prima facie and indefeasible under sections 25 and 26 of the Land Registration Act.
Whether an agreement existed to share compensation from KeNHA according to family graves
The court found an agreement to share grave compensation (Respondent five graves, family three), but held graves on the land do not confer a share of the land itself
The trial court found no written agreement on grave compensation but nonetheless ordered grave compensation shared. The appellate court accepted the Respondent's admission of an agreement on graves. However, it held the presence of graves does not create rights over land whose ownership has already been determined, citing the principle that there is no property in a dead body.
Whether grandchildren are entitled to inherit their grandparent's property
Grandchildren inherit directly only where their own parents are dead, stepping into their parents' shoes; this is not a succession matter and should be litigated in the proper forum
The court endorsed the trial court's position as supported by section 29 of the Law of Succession Act and the estate of Veronica Njoki Wakagoto decision. The appellant failed to demonstrate dependency on or support by the deceased grandfather, and the court noted distribution of a deceased's estate belongs in succession proceedings where all beneficiaries are identified.
Legal principles established
#- Trust is a question of fact which must be proved by credible evidence by the party asserting it; courts will not imply a trust save to give effect to the intention of the parties
- A registered proprietor's title is absolute and indefeasible and may only be challenged on fraud or misrepresentation to which the proprietor is party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
- Fraud must be specifically pleaded with particulars and distinctly proved; it cannot be inferred from facts
- Graves of family members on registered land do not automatically entitle a party to a share of that land
- Grandchildren have no direct right to inherit grandparents who die intestate; they inherit directly only when their own parents are dead, stepping into their shoes
Court orders
#- 1.Appeal dismissed with costs to the Respondent
- On appeal from
- Senior Resident Magistrate's Court at Mutomo
- Mutomo Land Case No. 5 of 2018
- Jurisdiction invoked
- First appellate jurisdiction over the Senior Resident Magistrate's Court decision (Being an appeal from the judgment of the Senior Resident Magistrate in Mutomo Land Case No. 5 of 2018)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Solomon Mwendwa Joshiah v Kaviti Kalani [2022] KEELC 646 (KLR)", Case Analysis (2022). ELC Appeal No. 35 of 2021 (formerly Machakos ELC Appeal No. 54 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/646/eng@2022-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.