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)
The bottom line
#A Kenyan court cancelled fraudulently obtained land titles, confirming that even registered owners can lose land acquired unlawfully.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff had locus standi to prosecute the suit
The plaintiff, suing as legal representative with a limited grant ad litem, was properly before the court
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.
Whether the 7th defendant had capacity to file the counterclaim
The counterclaim was incompetent for want of letters of administration
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.
Whether the allegations of fraud were proven
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
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.
Whether title acquired through an irregular adjudication/objection process is indefeasible
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
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.
Effect of non-joinder of the Land Adjudication and Settlement Officer and the Land Registrar
Their non-joinder was noted but did not defeat the suit; grievances against the Government must however be brought against the Attorney-General
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.
Legal principles established
#- 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
#- 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.Costs of the suit to be borne by the 1st defendant
- 3.The 7th defendant's counter claim dated 13th November 2020 dismissed with no orders as to costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court under the Land Registration Act and Land Adjudication Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.