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ELCPartially AllowedEnvironment & Land Case 159 of 2019· [2023] KEELC 20494 (KLR)

Kihara & another (Suing as the Administrators of the Estate of Kihara Thatu Gatu) v Kihara

Environment and Land Court of Kenya
5 October 2023
AOA. A. Omollo
10,804 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~43 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a land title obtained through a fraudulent subdivision, even though the current owner wasn't personally involved in the fraud.

What this practically means

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Executive summary

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The plaintiffs, administrators of the estate of Kihara Thatu Gatu, sued Rose Wambui Kihara alleging that she fraudulently caused the subdivision of Subukia/Subukia Block 4/28 (Ngamini), registered in the deceased's name, into parcels 4/47 and 4/48, with 4/48 registered in her name. They sought cancellation of her title, a declaration that the property forms part of the estate, and a perpetual injunction. The defendant claimed the deceased gifted her parcel 4/48 inter vivos during his lifetime and that she held an indefeasible title; she relied on her acquittal in Nyahururu Criminal Case No. 1232 of 2015 and the pending appeal against the succession court's finding that she was not a wife of the deceased. The court framed four issues and held the marital status question irrelevant. Relying on a forensic finger print report showing the thumbprints on the Land Control Board consent and mutation form were not the deceased's, and applying the elevated standard of proof for fraud, the court found the subdivision fraudulent. It further held that although the defendant did not orchestrate the fraud, any transaction founded on the fraudulent subdivision was null and void, and a title acquired illegally, unprocedurally or through a corrupt scheme is challengeable under Section 26(1)(b) of the Land Registration Act. The court declared the subdivision fraudulent, cancelled the defendant's title to parcel 4/48 as null and void, ordered rectification of the register of parcel 4/28 by deleting the defendant's name and restoring that of Kihara Thatu Gatu, and directed each party to bear their own costs to avoid worsening the family dispute. The injunction prayer was not granted.

Key legal issues

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01

Whether the subdivision of the parent title was fraudulent

Holding

The court found the subdivision fraudulent because forensic evidence showed the thumbprints on the consent and mutation forms were not those of the registered owner

Reasoning

The forensic finger print analyst report produced through PW2 established that the finger print impressions on the application for Land Control Board consent and the mutation form did not belong to Kihara Thatu Gatu. The defendant did not call the surveyor who drew the mutation or rebut this evidence. Applying the elevated standard of proof for fraud, the court was satisfied the subdivision documents were forged.

p. 18
02

Whether the defendant's title to Subukia/Subukia Block 4/48 was valid despite her acquittal in the criminal case

Holding

The title was null and void because it derived from the fraudulent subdivision, regardless of the defendant's non-participation in the fraud

Reasoning

The court accepted that the evidence did not show the defendant orchestrated the fraud, consistent with her criminal acquittal. However, it held that acquittal does not negate the fact of fraud; any transaction hinged on the fraudulent subdivision is null and void. Section 26(1)(b) of the Land Registration Act permits challenge where a certificate of title was acquired illegally, unprocedurally or through a corrupt scheme, and Section 80 empowers rectification of the register.

p. 18
03

Whether the defendant's claim of a gift inter vivos sustained her title

Holding

The gift claim failed; the defendant produced no transfer documents, consent or witnesses to the gifting

Reasoning

The defendant testified the deceased handed her the title deed as a gift inter vivos, but she had no title documents beyond the title deed, no transfer form, no Land Control Board consent, and no witnesses to the handing over. The forensic evidence showed the subdivision documents bore fingerprints not of the deceased. The court found the title documents she held arose from the fraudulent subdivision and could not stand.

p. 17
04

Whether the question of whether the defendant was a wife of the deceased was relevant

Holding

The court held the marital status question was irrelevant, having been determined by the High Court in the succession cause and being subject of an appeal

Reasoning

Both parties extensively addressed whether the defendant was a wife of the deceased. The court declined to determine this, noting it was decided in Succession Cause No. 345 of 1998 and is pending before the Court of Appeal in Nakuru Civil Appeal No. 82 of 2019. The suit turned on the validity of the subdivision and resultant title, not on marital status.

p. 16

Legal principles established

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  • A party cannot claim benefit from a transaction founded on a fraudulent subdivision even where that party was not personally involved in the fraud
  • A title acquired illegally, unprocedurally or through a corrupt scheme is subject to challenge under Section 26(1) of the Land Registration Act even without proof that the title holder was party to the fraud
  • The standard of proof in fraud cases is higher than a balance of probabilities but lower than beyond reasonable doubt

Court orders

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  1. 1.A declaration that title No Subukia/Subukia Block 4/28 (Ngamini) was fraudulently sub-divided
  2. 2.A declaration that the resultant title Subukia/Subukia Block 4/48 (Ngamini) registered in the name of the Defendant is null and void and the same is cancelled
  3. 3.An order that the register of Land parcel No. Subukia/Subukia Block 4/28 (Ngamini) shall be rectified by deleting the names of the defendant and restoring the name of Kihara Thatu Gatu
  4. 4.Each party shall bear own costs

Authorities

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Legislation

  • Land Registration ActSection 26(1)(a) and (b)
  • Land Registration ActSection 80(1) and (2)
  • Land Registration ActSection 7
  • Registration of Titles Act (repealed)Section 23(1)
  • Civil Procedure Act (Cap. 21)Section 27
  • Environment and Land Court ActSection 13(2)(7)(a)

Cases cited (14)

  • Chirchir Paul Kipsang v David Rono
    (2021) eKLR

    That a disputed mutation drawn to obtain unjust advantage was not lawfully executed

  • Teresia Wangari Mbugua v Jane Njeri Nduati & Another
    (2020) eKLR

    Cited with approval Munyua Maina on burden of proving invalid title

  • Munyua Maina v Hiram Gathiha Maina
    Civil Appeal No 239 of 2009

    Proposition on challenging title cited with approval

  • Charles Karathe Kiarie & 2 others v Administrators of Estate of John Wallance Mathare (deceased) & 5 others

    Importance of the green card as a land register

  • Zurich Insurance Company PLC v Colin Richard
    [2011] EWCA CIV 641

    A party should not be vexed twice over the same matter (res judicata)

  • Mercy Munee Kingoo & Another v Safaricom Limited & Another
    Malindi Constitutional Petition No 5 of 2016

    Approved the Zurich Insurance res judicata principle

  • Alice Chemutai Too v Nickson Kipkurui Korir & 2 Others
    2015 eKLR

    Anyone might have tampered with conveyancing documents

  • Kinyanjui Kamau v George Kamau
    (2015) eKLR

    Allegations of fraud must be pleaded and strictly proved to a standard above balance of probabilities

  • Ndolo v Ndolo
    [2008] 1 KLR (G & F) 742

    Standard of proof for forgery/fraud allegations higher than balance of probabilities

  • Kuria Kiarie & 2 others v Sammy Magera
    (2018) eKLR

    No evidence tendered to prove lack of capacity due to illness

  • Republic v Rosemary Wairimu Munene, Ex-Parte Applicant v Ihururu Dairy Farmers Co-operative Society Ltd

    Discretion on costs as cited in Cecilia Karuru Ngayu

  • Cecilia Karuru Ngayu v Barclays Bank of Kenya
    (2016) eKLR

    Costs discretion

  • Vijay Morjaria v Nansingh Madhusingh Darbar & another
    [2000] eKLR

    Fraud must be specifically pleaded and distinctly proved

  • Koinange & 13 others v Charles Karuga Koinange
    1986 KLR

    Onus on plaintiff alleging fraud; strict proof required

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over disputes relating to title and registration of land

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Kihara & another (Suing as the Administrators of the Estate of Kihara Thatu Gatu) v Kihara", Case Analysis (2023). Environment & Land Case 159 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20494/eng@2023-10-05

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