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ELCPartially Allowed· [2023] KEELC 785 (KLR)

Ngunjiri & 4 others v Wainaina (Environment & Land Case 312 of 2017) [2023] KEELC 785 (KLR)

Environment and Land Court
8 February 2023
ANA. NYUKURI
3,522 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a first-instance Environment and Land Court judgment at Machakos delivered by A. Nyukuri, J on February 8, 2023, on the defendant's counterclaim only, the plaintiffs' own plaint having been struck out on their own preliminary objection. The plaintiffs, biological children of the defendant, had sued their father claiming LR No 14812/3 was held in trust for them as family/matrimonial property acquired through their late mother, and sought a permanent injunction restraining its sale. The defendant denied the trust, averring he purchased the property in 2003, two years after his wife's death, from his own income. He counterclaimed for a declaration of ownership, damages for breach of contract and a permanent injunction against further cautions, alleging the plaintiffs' caution frustrated his 2018 sale agreement with Joint Commercial Supplies Limited, costing him Kshs 50,000/-. The plaintiffs tendered no evidence in defence of the counterclaim. The court framed two issues: lawful ownership of the suit property and whether the counterclaim was merited. Applying sections 24, 25 and 26 of the Land Registration Act, it held the defendant was the absolute and indefeasible owner, his title unchallenged on any ground of fraud or misrepresentation, and that the plaintiffs' caution was unlawful since they held no registered or overriding interest. It awarded Kshs 50,000/- damages and issued a permanent injunction against further cautions or objections to land board consents. Having no jurisdiction over matrimonial property under Rule 6 of the Matrimonial Property Rules 2022, the court made no order as to costs given the family relationship.

Key legal issues

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01

Whether the defendant is the lawful owner of the suit property

Holding

Yes. The defendant produced a certificate of title showing registration on February 21, 2003; the plaintiffs, who tendered no evidence, failed to show fraud, misrepresentation or any overriding interest, so his ownership is absolute and indefeasible and protected under article 40 of the Constitution and section 26 of the Land Registration Act.

Reasoning

Section 24 of the Land Registration Act vests absolute ownership in the registered proprietor, and section 26 makes a certificate of title prima facie evidence of indefeasible ownership subject only to challenge on fraud or misrepresentation. The plaintiffs' allegation of family joint venture or matrimonial property was unsupported by evidence as they gave none at trial, having themselves procured the striking out of their matrimonial-property claim on their own preliminary objection.

p. 5
02

Whether the caution lodged by the plaintiffs was lawful and whether damages were payable

Holding

The caution was unlawful since the plaintiffs had no registered or overriding interest, and damages of Kshs 50,000/- were awarded for the loss of the sale.

Reasoning

Having no rights noted on the title and no overriding interests under section 28 of the Land Registration Act, the plaintiffs could not lawfully limit the defendant's enjoyment of his property. Their caution frustrated his sale agreement with Joint Commercial Supplies Limited causing him a loss of Kshs 50,000/-, which the court found to be reasonable compensation.

p. 6
03

Whether the court could entertain the matrimonial property question

Holding

No. The matrimonial property issue had been struck out on the plaintiffs' own preliminary objection, and the court lacks jurisdiction over Matrimonial Property Act proceedings.

Reasoning

The plaintiffs' own preliminary objection succeeded against their plaint, removing the matrimonial property issue from dispute. Rule 6 of the Matrimonial Property Rules 2022 vests such jurisdiction in the Magistrates' Court, Kadhis' Court or the High Court where pecuniary jurisdiction exceeds the Magistrates' Court, not the Environment and Land Court.

p. 5

Legal principles established

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  • A registered proprietor's title is indefeasible and absolute unless challenged on grounds of fraud, misrepresentation or illegal acquisition.
  • Submissions are not evidence; a party cannot rely on submissions to prove facts where no evidence was tendered.
  • The Environment and Land Court lacks jurisdiction over matrimonial property proceedings, which lie in the Magistrates' Court, Kadhis' Court or High Court.

Court orders

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  1. 1.A declaration that the defendant is the absolute and indefeasible owner of LR No 14812/3.
  2. 2.Damages of Kshs 50,000/- awarded to the defendant.
  3. 3.An order of permanent injunction restraining the plaintiffs from lodging cautions on LR No 14812/3 and lodging objections to the defendant's applications for issuance of Land Board Consents in support of any intended sale of LR No 14812/3.
  4. 4.No order as to costs.

Authorities

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Legislation

  • Matrimonial Property Actsections 2, 6, 6(i)(c), 7, 14a
  • Land Registration Act No 3 of 2012sections 24, 25, 26, 28, 93
  • Evidence Actsections 162, 163(1)(c)
  • Matrimonial Property Rules 2022Rule 6
  • Constitution of Kenyaarticles 10, 40

Cases cited (7)

  • Charter House Bank Limited (Under Statutory Management) vs Frank N Kamau
    Nairobi CA No 87 of 2014 (2016) eKLR
  • Cornelius Kato vs Peter John Mwanthi
    (2022) eKLR
  • PNN vs ZWN
    (2017) eKLR
  • Arthi Highway Developers Limited vs West End Butchery Limited & 6 others
    [2015] eKLR
  • Lawrence P Mukiri Mungai, Attorney of Francis Muroki Mwaura vs Attorney General & 4 Others
    (2017) eKLR
  • David Bagire vs Martin Bund
    (1997) eKLR
  • Bonham Carter vs Hyde Park Hotel Limited
    [1948] 64 TLR 177
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - the court expressly disclaimed jurisdiction under the Matrimonial Property 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, "Ngunjiri & 4 others v Wainaina (Environment & Land Case 312 of 2017) [2023] KEELC 785 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/785/eng@2023-02-08

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