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ELCOtherEnvironment & Land Case 347 of 2017· [2022] KEELC 13560 (KLR)

Gitau & another v LN alias LNM & another

Environment and Land Court
13 October 2022
LGL. N. Gacheru
9,117 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~36 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled land titles bought from a man found to lack mental capacity, returning the land to his estate.

What this practically means

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Executive summary

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The Plaintiffs, David Mungai Gitau and Michael Gitau Ng'ang'a, sued for declarations that they remained the bona fide registered owners of parcels LOC.6/Giathaini/1462 and 1291, seeking restoration of register entries and cancellation of titles allegedly derived from a decree extracted from the Kiharu Land Disputes Tribunal award which had been declared null and void. The Defendants, substituted for the late JMK, denied the claim and counterclaimed, alleging JMK suffered mental retardation from birth, lacked capacity to transact, and that the Plaintiffs fraudulently took advantage of him to subdivide and transfer his land. The Court framed four issues: bona fide ownership, entitlement to the Plaintiffs' reliefs, entitlement to the Counterclaim reliefs, and costs. On the evidence, including a Mathari Hospital letter describing a dementing illness and uncontroverted testimony of lifelong mental incapacity, and noting the Plaintiffs produced no sale agreements nor evidence of possession amounting to part performance, the Court held JMK lacked mental capacity when the alleged 1987 and 1999 transactions occurred. The alleged sale agreements were declared null and void for want of capacity. The Plaintiffs' suit was dismissed with costs. Allowing the Counterclaim, the Court declared the subdivisions of the mother title LOC.6/Giathaini/1050 null and void ab initio, cancelled the resultant titles (1291, 1462, 1463 and 1464), and directed that parcel 1050 revert to the estate of John Murigi Kimani, with costs of the main suit and Counterclaim awarded to the Defendants.

Key legal issues

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01

Mental capacity of the vendor to enter into contracts for the sale of land

Holding

The Court found the late JMK lacked mental capacity at the material time and the alleged sale agreements were null and void

Reasoning

The Defendants bore the onus of proving incapacity. They led evidence from four witnesses and a Mathari Hospital letter showing JMK suffered a dementing illness. The Plaintiffs adduced no rebuttal evidence, and the LDT elders who saw JMK concluded he had mental retardation. Being from the same locality, the Plaintiffs presumably knew of his condition yet did not involve his family.

p. 13
02

Burden of proof on Plaintiffs to prove sale agreements absent written contracts

Holding

Plaintiffs failed to discharge the burden of proving valid sale transactions or part performance

Reasoning

Neither Plaintiff produced a sale agreement or acknowledgement of receipt of the purchase price. Under Section 107 of the Evidence Act and the pre-2003 Section 3(3) proviso of the Law of Contract Act, they had to prove part performance by possession, but evidence of possession was thin and uncorroborated.

p. 13
03

Whether Defendants' Counterclaim should be allowed

Holding

Counterclaim allowed; all resultant titles cancelled and mother title to revert to JMK's estate

Reasoning

Since JMK could not validly consent to any transfer or subdivision, all transactions flowed nullities. Invoking Section 80 of the Land Registration Act, the Court cancelled titles to parcels 1291, 1462, 1463 and 1464 and ordered reversion of parcel 1050 to JMK's estate.

p. 15
04

Whether Plaintiffs' claim should be dismissed

Holding

Dismissed with costs as Plaintiffs failed to prove their case on a balance of probabilities

Reasoning

With the sale agreements invalid for want of capacity, the proprietary rights claimed under them could not be sustained. The Court exercised its discretion on costs under Section 27 of the Civil Procedure Act in favour of the successful Defendants.

p. 16

Legal principles established

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  • Every person is presumed to be of sound mind unless proved to be mentally disordered, and degrees of mental disorder vary widely so incompetence must not be inferred from a mere label
  • A contract entered into by a person suffering such mental disability that he cannot understand its nature is voidable at the instance of the disabled party
  • A title may be challenged where it has been acquired illegally, unprocedurally or through a corrupt scheme

Court orders

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  1. 1.Plaintiffs' suit as presented in the amended Plaint dated 1st September 2015 dismissed with costs to the Defendants
  2. 2.Declaration that parcel No. LOC. 6/Giathaini/1050 belonged to JMK (deceased)
  3. 3.Declaration that the late JMK lacked the requisite mental capacity to transact, enter into sale agreements or execute documents transferring and/or subdividing the land
  4. 4.Declaration that the transactions between the late JMK and the Plaintiffs were invalid for want of mental capacity
  5. 5.Declaration that any subdivision resulting from title No. LOC. 6/Giathaini/1050 was null and void ab initio
  6. 6.Declaration that titles to parcels No. LOC. 6/Giathaini/1291, 1462, 1463 and 1464 are invalid and cancelled
  7. 7.Declaration that title for land parcel No. LOC. 6/Giathaini/1050 shall revert to the Estate of John Murigi Kimani
  8. 8.Judgment entered for the Defendants as prayed in their Counterclaim in terms of prayers No. 1, 2, 3 and 4
  9. 9.Defendants awarded costs of the main suit and the Counterclaim
Jurisdiction invoked
Original jurisdiction under Article 162(2)(b) of the Constitution and the Environment and Land Court 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, "Gitau & another v LN alias LNM & another", Case Analysis (2022). Environment & Land Case 347 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13560/eng@2022-10-13

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