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ELCPartially AllowedELC Case (Makueni) — Plaint dated 19th October 2016· [2023] KEELC 185 (KLR)

Ngoma (Suing as the Daughter and Legal Representative of the Estate of Alice Mbinya Ngoma -Deceased) v Matheka & 6 others (Environment & Land Case 33 of 2017) [2023] KEELC 185 (KLR)

Environment and Land Court
26 January 2023
8,318 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled fraudulently obtained land titles, confirming that even registered owners can lose land acquired unlawfully.

What this practically means

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Executive summary

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The plaintiff, daughter and legal representative (with a limited grant ad litem) of the late Alice Mbinya Ngoma, sued inter alia to cancel registrations of parcels Kisau/Mangani/374, 935 and 936, alleging that the 1st defendant in collusion with the District Land Registrar fraudulently manufactured adjudication records after the deceased's death, reducing the 0.81-hectare parcel to 0.26 hectares and creating two new parcels. The 1st, 4th and 5th defendants denied fraud; the 4th defendant claimed to have lawfully purchased parcel 935 from the 1st defendant, and the 5th defendant purchased a portion from the 7th defendant, a son of the deceased who counterclaimed seeking nullification of the subdivision, cancellation of the titles, reissue in the deceased's name for succession, and an injunction. The court framed three issues: proof of fraud, entitlement to the orders sought, and costs. It held the plaintiff had locus under a grant ad litem, but the 7th defendant lacked capacity to counterclaim without letters of administration. Applying the principle that fraud must be specifically pleaded and strictly proved to a standard heavier than the ordinary balance of probabilities, the court found fraud not established against the 4th, 5th and 6th defendants, dismissing the claim against them with costs. However, the 1st defendant's evidence was found questionable—she lodged an objection after the owner's demise and procured title without authorisation—and a prima facie case was established against her; her title could not be said to have been lawfully acquired. The court allowed the plaint only in terms of prayer (a): cancellation of all three title registrations and deeds. The counterclaim was dismissed with no orders as to costs, and costs of the suit were awarded against the 1st defendant.

Key legal issues

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01

Whether the plaintiff had locus standi to prosecute the suit

Holding

The plaintiff, suing as legal representative with a limited grant ad litem, was properly before the court

Reasoning

Relying on In re the Estate of Helena Wangechi Njoroge (Deceased) and In re Estate of Paul Kiunga (Deceased), the court held that a grant ad litem suffices for filing a civil suit to protect the estate against third parties, and a full grant is not a prerequisite to filing such a suit. The objection to the plaintiff's capacity therefore failed.

p. 12
02

Whether the 7th defendant had capacity to file the counterclaim

Holding

The counterclaim was incompetent for want of letters of administration

Reasoning

Applying Isaya Masira Momanyi v Daniel Omwoyo, the court held that only a person issued with a grant of letters of administration may represent a deceased's estate. The 7th defendant filed in his capacity as a son without any grant, including a limited grant ad litem, so the counterclaim could not stand and was dismissed with no orders as to costs.

p. 12
03

Whether the allegations of fraud were proven

Holding

Fraud was not proven against the 4th, 5th and 6th defendants, but a prima facie case was established against the 1st defendant on a balance of probabilities

Reasoning

The court found the 1st defendant's evidence questionable: she filed an objection after the registered owner's demise and procured title to parcel 936 without authorisation. Records showing the creation of parcels 935 and 936 were not produced. However, the higher standard of proof of fraud was not met against the 4th, 5th and 6th defendants, whose claim was dismissed with costs.

p. 14
04

Whether title acquired through an irregular adjudication/objection process is indefeasible

Holding

The 1st defendant's title to parcel 935 could not be said to have been acquired through a lawful procedure and was thus liable to cancellation

Reasoning

Although Section 26 of the Land Registration Act renders certificates of title prima facie evidence of absolute ownership, the court held that this protection does not extend to titles established to have been acquired unlawfully or illegally. The procedural irregularities surrounding objection no. 173, filed two years after the owner's death, undermined the legality of the resulting title.

p. 14
05

Effect of non-joinder of the Land Adjudication and Settlement Officer and the Land Registrar

Holding

Their non-joinder was noted but did not defeat the suit; grievances against the Government must however be brought against the Attorney-General

Reasoning

The court observed it would have been necessary to join the Adjudication Officer and Land Registrar so they could defend themselves and shed light on the circumstances. Under Sections 12(1) and 13 of the Government Proceedings Act, civil proceedings against the Government must be instituted against and served on the Attorney-General.

p. 14

Legal principles established

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  • Fraud must be specifically pleaded, its particulars stated on the face of the pleading, and it must be distinctly proved, not left to inference
  • The standard of proof of fraud is heavier than the ordinary civil standard on a balance of probabilities
  • Only a person holding a grant of letters of administration has capacity to represent a deceased's estate in legal proceedings, save that a limited grant ad litem suffices for filing a civil suit
  • Civil proceedings against the Government must be instituted against the Attorney-General and service of process must be effected on the Attorney-General (Government Proceedings Act ss. 12(1) and 13)
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership under Section 26 of the Land Registration Act, but not where unlawful or illegal acquisition is established

Court orders

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  1. 1.An order directed at the Land Registrar, Makueni District Lands Registry to cancel registration of Land Title Number Kisau/Mangani/374, Kisau Mangani/935 and Kisau Mangani/936 and title deeds issued in respect thereof
  2. 2.Costs of the suit to be borne by the 1st defendant
  3. 3.The 7th defendant's counter claim dated 13th November 2020 dismissed with no orders as to costs

Authorities

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Legislation

  • Law of Succession ActSection 45; Section 82
  • Land Registration ActSection 24(a); Section 26
  • Land Adjudication ActSection 11; Sections 25 and 26
  • Government Proceedings Act (Cap 40)Section 12(1); Section 13
  • Civil Procedure RulesOrder 1 Rule 3

Cases cited (26)

  • Elijah Makeri Nyangwara v Stephen Mungai Njuguna & Another
    Eldoret ELC Case No. 609B of 2012
  • Park Towers Limited v John Mithamo Njika & 7 Others
    [2014] eKLR
  • Avid Developers Limited v Blue Horizon Properties Limited & 2 Others
    [2021] eKLR
  • Peter Kamau Njau v Emmanuel Charo Tinga
    [2016] eKLR
  • Cyril J Haron and Andrew v Uchumi Services Limited and 3 Others
    [2014] eKLR
  • Central Kenya Limited v Trust Bank Limited and 4 Others
    [1996] eKLR
  • Martha Kigen v Johana Tibino
    [2014] eKLR
  • Mathew Lekaota Sinteria v Francis Sialo Memantiiki & 2 Others
    [2014] eKLR
  • Republic v Minister for Land & 3 Others, exparte Mutia Nzaa
    [2014] eKLR
  • Livingstone Kunini Ntutu v County Council of Narok & 2 Others
    [2014] eKLR
  • Julius Njuguna Mwangi v Kariuki Kamau Mbiuki & 4 Others
    [2018] eKLR
  • Kambora Mamau v Esther Nyambura Kirima
    [2002] eKLR
  • Francis Pius Omweri & Another v Alice Chesire
    [2013] eKLR
  • Priscilla Njeri Wamiti & 2 Others v Shiku John Company Limited
    [2017] eKLR
  • Dakianga Distributors Limited v Kenya Seed Company Limited
    [2015] eKLR
  • R.G Patel v Lalji Makanji
    [1957] E.A 314
  • Alfred Sagero Omweri v Kennedy Omweri Ondieki
    [2015] eKLR
  • Ndolo v Ndolo
    [2008] 1 KLR (G&F) 742
  • William Kiprono Towett & 1597 Others v Farmland Aviation Limited & 2 Others
    [2016] eKLR
  • In re the Estate of Helena Wangechi Njoroge (Deceased)
    [2015] eKLR
  • In re Estate of Paul Kiunga (Deceased)
    [2019] eKLR
  • Isaya Masira Momanyi v Daniel Omwoyo & anor
    [2017] eKLR
  • Kuria Kiarie & 2 Others v Sammy Magera
    [2018] eKLR
  • Vijay Morjaria v Nansingh Madhusingh Darbar & Another
    [2000] eKLR
  • Evans Otieno Nyakwana v Cleophas Bwana Ongaro
    [2015] eKLR
  • Central Bank of Kenya Ltd v Trust Bank Ltd and 4 Others
    Nai Civil Appeal No. 215 of 1996 (UR)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under the Land Registration Act and Land Adjudication 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, "Ngoma (Suing as the Daughter and Legal Representative of the Estate of Alice Mbinya Ngoma -Deceased) v Matheka & 6 others (Environment & Land Case 33 of 2017) [2023] KEELC 185 (KLR)", Case Analysis (2023). ELC Case (Makueni) — Plaint dated 19th October 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/185/eng@2023-01-26

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