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ELCDismissedEnvironment & Land Case 1375 of 2014· [2023] KEELC 18137 (KLR)

Karugu (Suing as the Personal Representative of Peter Karugu Guandai - Deceased) v Kiburu & 3 others

Environment and Land Court of Kenya
15 June 2023
LMLucy N. Mbugua
7,482 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a widow's claim that her late husband's Karen land was fraudulently sold, because she could not prove fraud.

What this practically means

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Executive summary

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The plaintiff, personal representative of the late Peter Karugu Guandai under a limited grant ad colligenda bona, sued four defendants seeking a declaration that her deceased husband's estate owned L.R. 2327/151 in Karen, cancellation of the conveyances through which the property passed to the 1st, 2nd and 3rd defendants, vacant possession, a permanent injunction and general damages. Her case was that the indenture of conveyance dated 14.9.2009, drawn and witnessed by the 4th defendant (the deceased's other wife and an advocate), was a forgery since the deceased died on 26.8.2009, and that the subsequent transfers were part of a fraudulent scheme. The 1st defendant said she contracted to buy the land in 2007, paid Ksh.4.32 million during the deceased's lifetime, and signed an undated transfer; the 4th defendant explained the conveyance was executed in February 2009 and dated only at registration, and that she later sold as attorney of the 1st defendant. The court framed four issues: capacity, fraud in the first transfer, fraud in the subsequent transfers, and whether the land forms part of the estate. It held the plaintiff had capacity, but applying the strict standard for proving fraud (R.G. Patel v Lalji Makanji) found no evidence the deceased's signature was forged; the plaintiff admitted lacking personal evidence the transaction post-dated death, and the criminal case against the 4th defendant ended in acquittal. The undated-but-executed conveyance was valid. Consequently the downstream transfers could not be impeached and the land does not form part of the estate. The suit was dismissed with each party bearing their own costs, the court noting ongoing probate battles and unresolved refund issues.

Key legal issues

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01

Plaintiff's capacity to sue

Holding

Plaintiff had capacity by virtue of her limited grant of letters of administration ad colligenda bona

Reasoning

The 4th defendant argued the plaintiff lacked capacity given pending succession proceedings and status quo orders. The court held the status quo orders did not revoke the limited grant issued on 29.4.2010, which conferred capacity to file the suit.

p. 9
02

Whether the transfer from the deceased to the 1st defendant was fraudulent

Holding

No fraud proved; the conveyance was executed in the deceased's lifetime and merely dated at registration

Reasoning

The plaintiff's only basis for alleging forgery was the conveyance date of 14.9.2009, after death. She admitted lacking personal evidence the transaction was not done before death. The 4th defendant's explanation of post-dating at registration was corroborated by DW1, and payments made during the deceased's lifetime supported the sale narrative.

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Whether subsequent transfers to the 2nd and 3rd defendants were fraudulent

Holding

Having found no fraud in the first transfer, the plaintiff had no basis to challenge the subsequent transactions

Reasoning

The court reasoned that since the root title from the deceased to the 1st defendant was valid, the plaintiff could not impeach the downstream conveyances. The 3rd defendant purchased on the strength of a registered title and power of attorney, and no fraud was established against the 2nd and 3rd defendants.

p. 12
04

Whether the suit land forms part of the deceased's estate

Holding

It does not, since the titles were held valid and not impeached

Reasoning

Because the court found no fraud and declined to impeach the titles, it followed logically that the property, now registered in the 3rd defendant's name, does not form part of the estate. Any dues owed to any party are recoverable as debts.

p. 13

Legal principles established

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  • Allegations of fraud must be strictly proved; something more than a mere balance of probabilities is required
  • Title procured through fraud, misrepresentation or illegally is not protected and may be impeached, but the title holder must be proved party to the fraud
  • A party alleging fraud bears the burden of proving it under sections 107 and 109 of the Evidence Act
  • A conveyance duly executed but left undated until presentation for registration is a validly executed registrable instrument

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Each party bears their own costs of the suit

Authorities

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Legislation

  • Constitution of KenyaArticle 40(6)
  • Land Registration ActSections 26(1), 43-46 (in particular 44), 68
  • Evidence ActSections 107, 109
  • Registered Land Act Cap 300 (Repealed)Sections 108, 109, 110
  • Civil Procedure ActSection 6
  • Stamp Duty ActSections 10(1), 17

Cases cited (17)

  • Trans Mara Sugar Company Limited v Ben Kangwaya Ayiemba & another
    [2020] eKLR

    Courts will not enforce contracts that contravene the law

  • Esther Kabugi Njuguna v Martha Chebet & others
    [2020] eKLR

    Sale and conveyance liable to be nullified for lack of consideration

  • Alice Chemutai Too v Nickson Kipkurui & others
    [2015] eKLR

    Title protected but impeachable if procured through fraud or illegally

  • Mohamed Shananaz Butt vs Kenya Revenue Authority & others
    [2020] eKLR

    A buyer with defective title cannot claim to be an innocent purchaser

  • Naftali Ruthi Kinyua v Patrick Thuita Gachure and City Council of Nairobi Civil Appeal No.44 of 2014

    Doctrine of lis pendens

  • Kinyanjui Kamau v George Kamau
    [2015] eKLR

    Forgery must be proved by a document examiner, not inference

  • John Guchu Njoroge v Mboi Kamiti Farmers Company Limited
    [2019] eKLR

    A donated power of attorney is valid unless revoked

  • C'est Bon Superior School Ltd v Joseph Alex Gichuhi & 2 others
    [2019] eKLR

    Bona fide purchaser for value without notice; irregularities of vendor borne by his estate

  • Shimoni Resort v Registrar of Titles & 5 others
    [2016] eKLR

    Bona fide purchaser for value without notice

  • Gichinga Kibutha v Caroline Nduku
    [2018] eKLR

    Particulars of fraud must be proved to the required standard

  • Jennifer Nyambura Kamau v Humphrey Mbaka Nandi
    [2013] eKLR

    He who alleges bears the burden of proving

  • Chemey Investment Limited v Attorney General & 2 others
    [2018] eKLR

    Fraudulently or illegally obtained title is not sacrosanct

  • Amos Kibata Githeko v Loise Gachiku Kinuthia
    [2021] eKLR

    Title obtained fraudulently cannot be protected

  • Elijah Makeri Nyangwara v Stephen Mungai Njuguna & another
    [2013] eKLR

    Impeachability of fraudulently acquired title

  • R. G. Patel v. Lalji Makanji
    [1957] EA 314

    Allegations of fraud must be strictly proved

  • In re Estate of Julius Ndubi Javan (Deceased)
    [2018] eKLR

    Non-disclosure of material facts undermines justice

  • Peter Nyaga Kairu v Esther Wanjiku Njau & 5 others
    [2019] eKLR

    Mortui non morden - dead men tell no tales; cannot cast aspersions on deceased's dealings

Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over disputes relating to land (suit property L.R. 2327/151)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Karugu (Suing as the Personal Representative of Peter Karugu Guandai - Deceased) v Kiburu & 3 others", Case Analysis (2023). Environment & Land Case 1375 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18137/eng@2023-06-15

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