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ELCPartially AllowedEnviromental and Land Originating Summons 541 of 2010· [2022] KEELC 12838 (KLR)

Thuo & another (Suing as the Legal Representatives of the Estate of Susan Waithera Fischer Thuo alias Susan Waithera Thuo - Deceased) v Wambui & 2 others

Environment and Land Court of Kenya
29 September 2022
SOSilvester Okong'o
7,084 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled land titles obtained from a deceased person's estate without letters of administration, even against an innocent buyer.

What this practically means

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Executive summary

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The Applicants, administrators of the estate of Susan Waithera Fischer Thuo (deceased), sued by Originating Summons seeking declarations that Kabete/Muthumu/T.178 belonged to the estate, that its transfer to the 1st Respondent and then to the 2nd Respondent was null and void, rectification of the register, accounts of rents, and a permanent injunction. The property was registered in the deceased's name at her death on June 28, 2007. The 1st Respondent claimed she acquired it from one Edgar Lorenz Werner by inheritance as the deceased's husband; the 2nd Respondent claimed he was an innocent purchaser for Kshs. 4,200,000. The Respondents argued the Applicants lacked locus standi. The court held that only a duly appointed legal representative could deal with the property; Edgar held no grant and was not shown to be a beneficiary, so the 1st Respondent's acquisition was illegal and fraudulent and her title null and void. That void title passed nothing to the 2nd Respondent, whose title was equally void; the bona fide purchaser defence protects only against equitable interests, not the deceased's legal interest. The Applicants' grant gave them locus standi. Judgment was entered for the Applicants: declarations of ownership and nullity, rectification of the register cancelling entries 6-9, restoration of the property to the deceased's name, and a permanent injunction against the 2nd Respondent. The order for accounts was refused for want of a fiduciary relationship. Costs were awarded against the 1st Respondent only.

Key legal issues

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01

Whether the 1st Respondent acquired the suit property lawfully from the deceased

Holding

No - the acquisition was illegal and fraudulent

Reasoning

The suit property was registered in the deceased's name at her death and could only be dealt with by her legal representatives. The 1st Respondent claimed to have acquired it from Edgar by inheritance, but produced no evidence that Edgar ever held a grant of letters of administration or was a beneficiary. She did not produce the instrument of transfer or explain how the property moved from the deceased to her. The burden was on her to prove lawful acquisition, which she failed to discharge.

p. 11
02

Whether the 2nd Respondent acquired a valid title from the 1st Respondent

Holding

No - the 2nd Respondent's title was tainted with the fraud and illegality of the 1st Respondent and is null and void

Reasoning

Nemo dat quod non habet: the 1st Respondent held a void title and could convey nothing. The innocent purchaser defence fails because it protects only against equitable interests, whereas the deceased held a legal interest enforceable against the 2nd Respondent regardless of notice. A fraudulent and illegal interest in land however innocently acquired cannot prevail against a valid legal interest.

p. 11
03

Whether the Applicants had locus standi to institute the suit

Holding

Yes - the Grant of Letters of Administration issued by the High Court gave them standing

Reasoning

The 1st and 2nd Respondents argued that only a spouse and children under section 35 of the Law of Succession Act had standing, contending Edgar was the deceased's husband. The court held that the Applicants produced a Grant of Letters of Administration which was never challenged, and that Grant gave them locus standi to maintain the suit on behalf of the estate.

p. 12
04

Whether the Applicants were entitled to an order of accounts for rents collected

Holding

No - the order of accounts was refused

Reasoning

Although the Applicants proved their claim and were entitled to the reliefs sought, the court declined the order for accounts because the 2nd Respondent, having acquired and taken possession of the property as he did, was not in any fiduciary relationship with the Applicants that imposed on him a duty to render accounts.

p. 12

Legal principles established

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  • Only a duly appointed legal representative of a deceased's estate can deal with the estate's property; a transfer by any other person is illegal and fraudulent
  • A title acquired illegally and fraudulently is null and void and confers no valid interest that can be conveyed to a third party
  • The bona fide purchaser defence is only available against equitable interests, not against a prior legal interest
  • A registered proprietor whose root of title is challenged must prove the legality of how he acquired the title beyond the instrument of title

Court orders

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  1. 1.Declaration that KABETE/MUTHUMU/T.178 together with all developments thereon is the property of the estate of Susan Waithera Fischer Thuo alias Susan Waithera Thuo (Deceased)
  2. 2.Declaration that the purported sale and transfer of the suit property to the 1st Respondent and subsequently to the 2nd Respondent were illegal, null and void ab initio
  3. 3.The 3rd Respondent to forthwith rectify the register by cancelling entries numbers 6, 7, 8 and 9 through which the property was transferred to the 1st and 2nd Respondents
  4. 4.The 3rd Respondent to forthwith restore ownership of the suit property to the name of the deceased SUSAN WAITHIRA THUO
  5. 5.Permanent injunction restraining the 2nd Respondent from intermeddling with, receiving rent from, transferring, charging or dealing with the suit property
  6. 6.Applicants to have the costs of the suit to be paid by the 1st Respondent

Authorities

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Legislation

  • Law of Succession Actsection 35
  • Law of Succession Actsection 82(a)(b)(c)
  • Law of Succession Actsection 45(1)
  • Registered Land Act (repealed)sections 27 and 28
  • Registered Land Act (repealed)section 143(1) and (2)

Cases cited (15)

  • Nirmal Singh Dhanjal v Joginder Singh Dhanjal & 4 Others
    Mombasa Civil Appeal No.14 of 2017

    A person without a grant of letters of administration has no good title to a deceased's property to pass to a third party

  • Daykio Plantations v National Bank of Kenya
    Thika ELC No.222 of 2018

    Definition of the term locus standi

  • Katende v Haridar & Company Limited
    [2008] 2 EA 173

    Ingredients of the bona fide purchaser for value without notice doctrine

  • Samuel Kamere v Land Registrar Kajiado
    Nairobi Court of Appeal, Civil Appeal No. 28 of 2005

    What a person claiming to be a bona fide purchaser for value must prove where title is under challenge

  • Munyu Maina v Hiram Gathiha Maina
    Civil Appeal No.239 of 2009

    A registered proprietor whose root of title is challenged must prove legality of acquisition beyond the title instrument

  • Mwangi James Njehia v Janetta Wanjiku Mwangi & another
    [2021] eKLR

    Quoting Lawrence P. Mukiri Mungai and Katende on bona fide purchaser requirements and their limits

  • Lawrence P. Mukiri Mungai, Attorney of Francis Muroki Mwaura v Attorney General & 4 Others
    Nairobi Civil Appeal No. 146 of 2014

    Cited with approval Katende on bona fide purchaser requirements

  • Hannington Njuki v William Nyanzi
    High Court civil suit number 434 of 1996

    Seven requirements a purchaser must prove to rely on the bona fide doctrine

  • Alberta Mae Gacie v Attorney General & 4 Others
    [2006] eKLR

    A crook using forgery or fraud cannot acquire valid title or pass it to a third party

  • Iqbal Singh Rai v Mark Lecchini and the Registrar of Titles
    Civil Case No 1054 of 2001

    A purchaser who did not deal with the registered proprietor cannot invoke indefeasibility under section 23(1)

  • Daudi Kiptugen v Commissioner of Lands & 4 Others
    [2015] eKLR

    The process of acquisition of title is material; a title not acquired through proper process is not good title

  • Arthi Highways Developers Limited v West End Butchery Limited & 6 others
    [2015] eKLR

    The bona fide purchaser without notice defence is available only against equitable interests

  • Peter Kaguara Uiru v Peter Githua Chege & another
    [2020] eKLR

    Only an administrator may deal with a deceased's estate; sale by a non-administrator is intermeddling and void ab initio

  • Macfoy v United Africa Co. Ltd.
    (1961) 3 All E.R 1169

    An act which is void is a nullity; it is incurably bad and every proceeding founded on it collapses

  • Wambui v Mwangi & 3 others
    (Civil Appeal 465 of 2019) [2021] KECA 144 (KLR)

    A title tainted with nullity, fraud or a corrupt scheme stands vitiated and is of no consequence

Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - original jurisdiction over land registered under the Registered Land Act

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, "Thuo & another (Suing as the Legal Representatives of the Estate of Susan Waithera Fischer Thuo alias Susan Waithera Thuo - Deceased) v Wambui & 2 others", Case Analysis (2022). Enviromental and Land Originating Summons 541 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12838/eng@2022-09-29

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