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ELCPartially AllowedEnvironment & Land Case 486 of 2017· [2022] KEELC 13621 (KLR)

BWK & another (of unsound mind suing through the next friend CMK) v SMK & 9 others; Kung'u & 7 others (Interested Parties)

Environment and Land Court of Kenya
13 October 2022
4,697 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled land titles created by subdividing a deceased father's land without succession, ruling the transfer fraudulent.

What this practically means

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Executive summary

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The Plaintiffs, Beth Wanjiku Kung'u (a person of unsound mind suing through her daughter as next friend) and CMK, sued nine Defendants, principally their siblings, over land parcel Loc.4/Nguthuru/174 registered in their father Kung'u Gachanja's name in 1967. He died in 1989 without the land undergoing succession. The mother title was closed on March 8, 2010 and sub-divided into parcels 1145-1152 registered to the Defendants without any Succession Cause having been filed; a Succession Cause was only filed in 2014/2015 and omitted the suit property. The Plaintiff sought a declaration of fraud, cancellation of the resultant titles and restoration of the original entry. The 1st to 3rd Defendants denied fraud, challenged the next friend's authority and admitted sub-division occurred without succession following a family meeting. The 4th Defendant and the Interested Parties supported the Plaintiff, alleging intermeddling. The Court framed four issues and held: (1) Order 32 CPR was complied with, and a beneficiary may sue to protect her interest in an estate even without a grant; (2) transmission of a deceased's land requires a Succession Cause, and in its absence fraud was proved - the Defendants admitted the irregularity and could not explain how the land moved from the deceased; (3) under Sections 26(1) and 80 of the Land Registration Act the Court has power to cancel titles obtained by fraud, and did so, directing the mother title revert to the deceased's estate for succession; (4) costs were awarded against the 1st, 2nd and 3rd Defendants only. Judgment was entered for the Plaintiff in terms of prayers (a), (b) and (c) of the amended Plaint.

Key legal issues

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01

Authority of the next friend to sue for a person of unsound mind

Holding

The suit was properly instituted through a next friend; Order 32 CPR was complied with and the Defendant's own witness confirmed the Plaintiff's mental incapacity

Reasoning

Order 32 rule 1 requires suits by persons of unsound mind to be instituted by a next friend with written authority to the advocate filed. The Court found an authority authorizing the law firm had been filed. DW2's uncontroverted cross-examination testimony that the Plaintiff was mentally impaired corroborated the claim. Rule 15 extends the Order to persons of unsound mind, so no formal adjudication of unsoundness was fatal.

p. 6
02

Locus standi of a beneficiary to sue over a deceased's estate

Holding

A beneficiary may sue to protect her interest in an estate even without a grant of letters of administration

Reasoning

While Section 79 and 82 of the Law of Succession Act vest estate property and the power to sue in personal representatives, the Court adopted In re Estate of Benson Maingi Mulwa holding that any person interested in an estate, as beneficiary or otherwise, may move the Court to preserve it. The Plaintiff was herself a registered allottee of part of the sub-divided land and a beneficiary, and the Defendants admitted sub-division occurred without a grant.

p. 6
03

Whether the sub-division and transfer was fraudulent

Holding

Fraud was proved; the land moved from the deceased to the Defendants in 2010 without any Succession Cause, contrary to Sections 41 and 45 of the Law of Succession Act

Reasoning

The Green Card showed the mother title closed on March 8, 2010 and sub-division preceded the 2014/2015 Succession Cause. Sections 41 LRA and 45 LSA bar dealings with a deceased's estate without a grant. The Defendants admitted no succession process preceded the sub-division, gave no explanation, and omitted the suit property from the Succession Cause. The Court found misrepresentation resulting in transfer and held fraud proved.

04

Whether cancellation of the resultant titles can issue

Holding

Yes; Section 80 LRA permits rectification where registration was obtained by fraud, so the sub-divided titles were cancelled

Reasoning

Section 26(1)(a) LRA permits challenge of title on grounds of fraud or misrepresentation to which the proprietor is proved to be a party. Having found fraud, the Court invoked Section 80 LRA to order rectification. It relied on authority that only a Court may cancel a register for fraud or mistake. The Court noted cancellation has far-reaching consequences but fraud justified it.

05

Costs

Holding

Costs follow the event under Section 27 CPA but were limited to the 1st to 3rd Defendants

Reasoning

Section 27 of the Civil Procedure Act gives the Court discretion. Fraud was attributed specifically to the 1st, 2nd and 3rd Defendants, so only they were condemned to pay costs despite the prayer for costs against all Defendants jointly and severally.

p. 9

Legal principles established

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  • To have locus standi in a suit pertaining to the estate of a deceased person a party must be a duly appointed personal representative, though a beneficiary may sue to protect his or her interest in the estate
  • Allegations of fraud must be strictly proved to a standard higher than a mere balance of probabilities
  • Only a Court may cancel or rectify a title to land on the ground of fraud or mistake under Sections 26 and 80 of the Land Registration Act
  • Transmission of a deceased proprietor's land can only occur after the filing of a Succession Cause

Court orders

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  1. 1.Declaration that the transfer of land parcel No. loc4/nguthuru/174 from the deceased on 21/9/2010 to the Defendants and the subsequent partition and registration of new numbers 1145-1152 was fraudulent
  2. 2.Cancellation of the resultant titles Loc.4/Nguthuru/1145-1152 with the register rectified so the mother title reverts to the estate of Kungu Gachanja (deceased) for a Succession Cause to be filed
  3. 3.Judgment for the Plaintiff against the Defendants jointly and severally in terms of prayers (a), (b) and (c) of the amended Plaint
  4. 4.1st, 2nd and 3rd Defendants condemned to pay the costs of the suit

Authorities

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Legislation

  • Constitution of KenyaArticle 27
  • Civil Procedure RulesOrder 32 rules 1, 2 and 15
  • Law of Succession ActSections 3, 45, 79, 82
  • Land Registration ActSections 24, 26(1), 41, 79, 80
  • Civil Procedure ActSection 27

Cases cited (10)

  • Trouistik Union International & another v Jane Mbeyu & another
    [1993] eKLR

    Only a personal representative may sue over a cause of action vested in a deceased person under section 82 LSA

  • In re Estate of Benson Maingi Mulwa (Deceased)
    [2021] eKLR

    A beneficiary may move the Court to preserve a deceased's estate without a grant

  • Mirko Blaeterman (Suing through his Power of Attorney - Shabir Hatim Ali) & another v David Mwangi Muiruri & 2 others
    [2015] eKLR

    Fraud must be strictly proved to a standard above balance of probabilities

  • R. G. Patel v. Lalji Makanji
    (1957) EA 314

    Standard of proof for fraud

  • Kinyanjui Kamau vs George Kamau
    [2015] eKLR

    Fraud allegations must be pleaded and strictly proved; fraud not inferred from facts

  • Ndolo vs Ndolo
    (2008) 1 KLR (G & F) 742

    Burden and higher standard of proof for fraud allegations

  • Zacharia Wambugu Gathimu & Another vs John Ndungu Maina
    {2019}

    Court cancelled title obtained unprocedurally

  • Siriekesi Morris Wanjala Wanjala vs Bonface Bruno Wanjala

    Court cancelled title where the Defendant failed to establish how title was obtained

  • Republic v Kisumu District Lands Officer & another
    [2010] eKLR (Kisumu Misc No. 80 of 2008)

    Only the Court may cancel or amend the register for fraud or mistake, not on first registration

  • Super Nova Properties Limited & another v District Land Registrar Mombasa & 2 others; Kenya Anti-Corruption Commission & 2 others (Interested Parties)
    [2018] eKLR (Mombasa Appeal No. 98 of 2016)

    Only a Court of law has mandate to cancel a title on the basis of fraud or illegality

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and the Environment and Land Court Act over land title disputes

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, "BWK & another (of unsound mind suing through the next friend CMK) v SMK & 9 others; Kung'u & 7 others (Interested Parties)", Case Analysis (2022). Environment & Land Case 486 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13621/eng@2022-10-13

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