Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC No 5 of 1990 (lead file), consolidated with CMCC No 103 of 2009 and CMCC No 603 of 2010· [2022] KEELC 3716 (KLR)

Alex Romano M'Twamwari (Legal Representative of the Estate of Maria Kanario M'Twamwari) & Others v Igoki Mutethia Farmers' Co-operative Society Limited & Others

Environment and Land Court
19 May 2022
10,526 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~42 min to read original · ~4 min brief

The bottom line

#

The court cancelled land titles traced to a fake sale agreement signed only by the buyer's side, protecting an estate and an innocent purchaser.

What this practically means

#

Executive summary

#
This judgment of the Environment and Land Court at Meru consolidates and disposes of three suits: ELC No 5 of 1990 (a claim by the estate of Maria Kanario M'Twamwari against Igoki Mutethia Farmers' Co-operative Society, Japhet Karuma and Zipporah Isaiah over Plot No 128), CMCC No 103 of 2009 (Zipporah Isaiah's trespass and eviction claim against Cornelius Muthuri and others), and CMCC No 603 of 2010 (Mugwika M'Twamwari and others against Zipporah Isaiah seeking cancellation of title). The court framed eleven issues and found that the deceased never signed the alleged 1987 sale agreement to Zipporah Isaiah, who paid the purchase price to Japhet Karuma, an unauthorized person who was not the deceased's son. Applying Section 3(3) of the Law of Contract Act, the agreement was a nullity. The co-operative's entry of Zipporah's name on the register, the 2004 subdivision, and the subsequent transfers were irregular, unprocedural and made in breach of subsisting injunction orders, and amounted to intermeddling with a deceased person's estate contrary to Section 45 of the Law of Succession Act. The arbitration minutes of January 1990 did not qualify as admissible public documents under the Evidence Act. Cornelius Muthuri, the purchaser from Zipporah Isaiah, was found to be an innocent purchaser for value without notice of the illegalities. The court allowed the prayers in the lead file save for general damages (not proved), dismissed the prayers in the 2nd and 3rd files, and awarded costs to the plaintiff.

Key legal issues

#
01

Validity of the alleged sale agreement dated October 24, 1987 between the deceased and the 3rd defendant

Holding

The sale agreement was not signed by the deceased, who disowned it under oath; the 2nd defendant was not her authorized agent; the agreement was a nullity under Section 3(3) of the Law of Contract Act.

Reasoning

The deceased never signed the agreement and disowned it in affidavits sworn in 1990. The 3rd defendant gave the purchase price to the 2nd defendant, who was never the deceased's son or authorized agent, and the deceased never acknowledged receipt of the money. The 2nd defendant did not testify to counter the deceased's sworn affidavits. Applying Section 3(3) of the Law of Contract Act and the Kukal Enterprises dictum, an agreement signed by only one party is unconcluded, inoperative and unenforceable.

p. 12
02

Whether the entry of the 3rd defendant's name in the register by the 1st defendant was lawful

Holding

The changes to the register were irregular, invalid, unprocedural and unlawful; no valid sale agreement or transfer existed between the deceased and the 3rd defendant.

Reasoning

The 1st defendant failed to produce minutes, resolutions, transfer forms, register entries or land control consent to substantiate its claim that the deceased acknowledged the sale at an annual general meeting. Section 42 of the Co-operative Societies Act prescribes the procedure for alienation of immovable property by a co-operative society, which was not complied with. Agricultural land required land control board consent, which was also not produced.

p. 13
03

Whether the subdivisions and subsequent transfers of the suit land to the 3rd defendant were valid

Holding

The subdivisions, transfers and title obtained in 2004 were illegally, unprocedurally and contrary to existing court orders, hence null and void.

Reasoning

There was a pending injunction order from January 12, 1990 stopping any transactions over Plot No 128 until final determination of the suit. The deceased died in 1996 without a confirmed grant. The 3rd defendant subdivided and transferred the land to herself in 2004 and 2009 while the suit was pending and without a confirmed grant or the involvement of the legal representative, thereby intermeddling with the estate contrary to Section 45 of the Law of Succession Act.

04

Whether the defendant in the 3rd file (Cornelius Muthuri) was a bona fide purchaser for value

Holding

The defendant in the 3rd file was found to be an innocent purchaser for value not party to the illegalities.

Reasoning

Relying on Katende v Haridar & Company Limited, the court found no evidence that Cornelius Muthuri was party to any of the illegalities. He conducted due diligence, obtained an official search showing a clean title with no inhibition, caution or restrictions, and the pending cases were not disclosed to him at the time of sale. He had not taken possession and was stopped by the defendants in the 2nd file.

p. 17
05

Admissibility and evidential value of the arbitration minutes of January 9, 1990

Holding

The minutes did not fall within the exceptions under Section 68(2) of the Evidence Act; they were not proved as public documents or judicial proceedings.

Reasoning

The District Officer was not conducting judicial proceedings; no evidence was taken on oath; no independent party was called to produce the document as a true official record; and the 3rd defendant did not disclose attempts to procure the original or trace the maker. The authenticity, veracity and correctness of the minutes were in question, and the original was not produced by its maker.

Legal principles established

#
  • A contract for the disposition of an interest in land that does not comply with Section 3(3) of the Law of Contract Act is a nullity ab initio
  • A title obtained illegally, unprocedurally or through a corrupt scheme is impeachable notwithstanding the indefeasibility provisions of the Land Registration Act
  • Property of a deceased person cannot be lawfully dealt with by anybody unless authorized by law; any person who acts to the contrary is guilty of intermeddling
  • Where a party fails to call evidence in support of its case, that party's pleadings remain mere statements of fact

Court orders

#
  1. 1.The prayers in the lead file are allowed save for general damages which were not proved
  2. 2.The prayers in the 2nd and 3rd files are dismissed
  3. 3.General damages refused as not proved
  4. 4.Judgment entered in accordance with the findings on the sale agreement, transfer, subdivisions and titles

Authorities

#

Legislation

  • Civil Procedure RulesOrder 11
  • Law of Contract ActSection 3(3)
  • Evidence ActSections 34, 35, 67, 68, 69, 79, 107
  • Co-operative Societies ActSection 42
  • Land Control ActCap 302
  • Land Registration ActSection 26
  • Law of Succession ActSections 45, 93(1)

Cases cited (14)

  • Samuel Odhiambo Oludhe & 2 others vs Jubilee Jumbo Hardware Ltd & another
    ELC No 417 of 2015
  • Evanson Wambugu Gachugi vs Simon Wainaina Gatwiki & 2 others
    CA No 5 of 2014
  • Daudi Ledama Morintat vs Mary Christine Karie & 2 others
    [2017] eKLR
  • Kukal Enterprises Development Ltd vs Tafazzal H Maloo & 3 others
    [1993] eKLR
  • Leo Investment Ltd vs Estuarine Estate Ltd
    (2017) eKLR
  • Margaret Muthoni Wanyee vs Mukenia Co-operative Society Ltd
    (2018) eKLR
  • Dickson Ngigi Ngugi vs Morrison Njenga Waweru
    (1979) eKLR
  • Trust Bank Ltd vs Paramount Universal Bank Ltd and 2 others
    Nairobi Milimani HCC No 1243 of 2001
  • Peter Ngugi Kigira vs Fredrick Nganga Kigira
    (2021) eKLR
  • Re Estate of M'Mbwiria M'Mairanyi
    (2019) eKLR
  • Jane Gachoki Gathecha vs Priscilla Nyawira Gitungu & another
    (2008) eKLR
  • In the matter of Estate of Veronica Njoki Wakagoto (deceased)
    (2013) eKLR
  • Elijah Makeri Nyangwara vs Stephen Mungai Njuguna & another
    (2013) eKLR
  • Katende vs Haridar & Company Limited
    (2008) 2 EA 173
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Alex Romano M'Twamwari (Legal Representative of the Estate of Maria Kanario M'Twamwari) & Others v Igoki Mutethia Farmers' Co-operative Society Limited & Others", Case Analysis (2022). ELC No 5 of 1990 (lead file), consolidated with CMCC No 103 of 2009 and CMCC No 603 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3716/eng@2022-05-04

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