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ELCDismissedELC Appeal No. 35 of 2021 (formerly Machakos ELC Appeal No. 54 of 2019)· [2022] KEELC 646 (KLR)

Solomon Mwendwa Joshiah v Kaviti Kalani [2022] KEELC 646 (KLR)

Environment and Land Court
22 March 2022
7,337 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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The Environment and Land Court at Kitui (L. G. Kimani, J) dismissed an appeal against the judgment of the Senior Resident Magistrate in Mutomo Land Case No. 5 of 2018, which had dismissed the appellant's suit seeking a permanent injunction, a declaration that Mutomo/Mwala/1124 was ancestral land, and an order halting compensation by the National Land Commission. The appellant, a grandson of the late Peter Lutu Moki, claimed the respondent, a daughter of the patriarch, held the suit land in trust for the family and had fraudulently registered herself as absolute proprietor during adjudication. The court, as the first appellate court, re-evaluated the evidence per Okeno v Republic and compressed the ten grounds of appeal into six issues. It held there was no express trust and no basis to imply a customary or constructive trust, as intention to create a trust must be clearly determined before a trust is implied; the family participated in the adjudication process without objection, and the appellant identified no overriding interests. On the challenge to title, the court found no evidence of fraud, misrepresentation, illegality, unprocedurality or corrupt scheme within section 26(1) of the Land Registration Act, noting fraud must be specifically pleaded and distinctly proved, and that the adjudication offices allegedly complicit were neither joined nor called as witnesses. The graves on the land did not confer proprietary rights, though an agreement to share grave compensation (five graves to the respondent, three to the family) was acknowledged. The court also endorsed the position that grandchildren inherit directly from grandparents only where their own parents are dead. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether the Respondent held Mutomo/Mwala/1124 in trust (customary or constructive) for the family of Peter Lutu Moki

Holding

No trust was established; there was no express trust and no circumstances warranting implication of a constructive or customary trust

Reasoning

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.

p. 6
02

Whether the Respondent's title could be challenged under section 26(1) of the Land Registration Act

Holding

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

Reasoning

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.

p. 8
03

Whether an agreement existed to share compensation from KeNHA according to family graves

Holding

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

Reasoning

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.

p. 7
04

Whether grandchildren are entitled to inherit their grandparent's property

Holding

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

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.Appeal dismissed with costs to the Respondent

Authorities

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Legislation

  • Land Registration ActSections 25, 26(1), 28
  • Land Adjudication ActCAP 284, Sections 11-16
  • Evidence ActSection 107
  • Civil Procedure Rules (2010)Order 2 Rule 10(a)
  • Law of Succession ActCAP 160, Section 29
  • Registered Land Actnull
  • Trustee Actnull

Cases cited (21)

  • Mwangi & Another v. Mwangi
    (1986) KLR 328
  • Jardu v. Kirpal
    (1975) EA 226
  • Kanyi v. Muthiora
    (1984) KLR 712
  • Njuguna v. Njuguna
    (1984) KLR 527
  • John Gitibu Buruna & Another v Jackson Rioba Buruna
    Civil Appeal No. 89 of 2003; [2007] eKLR
  • Edward Samuel Limuli vs Micheal (Marko) Sabayi
    HCCC No. 222 of 1978
  • Gituanja v Gituanja
    (1983) KLR 575
  • Re Estate of Wahome Njoki Wakagoto
    (2013) eKLR
  • Okeno v Republic
    (1972) EA 32
  • Twalib Hatayan & another v Said Saggar Ahmed Al-Heidy & 5 others
    [2015] eKLR
  • Peter Ndungu Njenga v Sophia Watiri Ndungu
    [2000] eKLR
  • Salesio M'itonga v M'ithara & 3 Others
    (2015) eKLR
  • Gichuki v Gichuki
    Civil Appeal No. 21 of 1981
  • SAN v GW
    [2020] Civil Appeal No. 1 of 2020 eKLR
  • Vijay Morjaria v Nansingh Madhusingh Darbar & another
    [2000] eKLR
  • Moses Parantai & Peris Wanjiku Mukuru v Stephen Njoroge Macharia
    [2020] eKLR
  • In the Matter of the estate of Veronica Njoki Wakagoto (Deceased)
    [2013] eKLR
  • Ayoub vs Standard Bank of S.A
    [1963] E.A. 619
  • Peters vs Sunday Post Ltd
    [1958] EA 424
  • Kirunga vs Kirunga & Another
    [1988] KLR 438
  • Davy v Garrett
    (1878) 7 Ch. D 473
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

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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, "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.