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ELCAllowedEnvironment and Land Appeal E097 of 2022· [2023] KEELC 21957 (KLR)

MGM'M v DMM'M & 2 others

Environment and Land Court
29 November 2023
5,847 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled land transfers made after the owner's death without letters of administration, ruling even later buyers had no valid title.

What this practically means

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Executive summary

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The appellant, a daughter of the late M'MK, appealed against the dismissal by the senior principal magistrate's court at Githongo of her claim that her stepbrother, the 1st respondent, held a portion of their deceased father's ancestral land in trust for her. She sought cancellation of the transfer, combination, subdivisions and subsequent transfers to the 2nd and 3rd respondents, a declaration of her overriding interest, new title in her name, and a permanent injunction. The respondents denied any trust; the 1st respondent claimed he bought the land from his father for Kshs.25,000 in 1992, while the 2nd and 3rd respondents pleaded bona fide purchase for value without notice. On first appeal, CK Nzili J re-evaluated the record and framed six issues on the nature and proof of trust, the lawfulness of the 1st respondent's acquisition, overriding interests, and the bona fide purchaser defence. The court found the register showed the 1st respondent only became registered owner on 2.3.2007, five years after the father died intestate in 2002, and that no transfer form, sale agreement, land control consent or stamp duty receipts for a 1992 transaction were produced. The transfer was therefore a nullity ab initio, tainting all derivative titles; the 2nd and 3rd respondents produced no paper trail of their purchases and could not rely on the bona fide purchaser authorities. The court further found the deceased intended the appellant, who was in occupation, to have a share, and that the 1st respondent acquired the title through wrongdoing to unjustly enrich himself. The appeal was allowed: the transfers and registrations were cancelled, the land to revert to the deceased's name to be dealt with under succession law in favor of the appellant, a permanent injunction issued, and costs of the appeal and lower court suit awarded against the 1st respondent.

Key legal issues

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01

Nature of trust pleaded

Holding

The pleaded trust was not restricted to customary trust; it embraced customary, constructive and resulting trusts.

Reasoning

The court reviewed Twalib Hatayan on express, constructive and resulting trusts and found the plaint pleaded trust in three phases. The pleadings disclosed family/ancestral land with the appellant in occupation, supporting implied trusts beyond customary trust alone.

p. 7
02

Validity of the 1st respondent's title

Holding

The 1st respondent's title was illegally and fraudulently obtained because the transfer occurred after the father's death without letters of administration.

Reasoning

The register showed the 1st respondent became registered owner on 2.3.2007, five years after the deceased died intestate in 2002. No transfer form, sale agreement, land control board consent or stamp duty receipts for 1992 were produced; the combination application predated his registration.

p. 9
03

Bona fide purchaser defence of 2nd and 3rd respondents

Holding

The 2nd and 3rd respondents could not be bona fide purchasers since the root title was fraudulently obtained and they produced no paper trail of their acquisitions.

Reasoning

Because the 1st respondent's title was a nullity, derivative titles were tainted. Neither respondent disclosed a sale agreement, transfer forms or proof of consideration; the authorities they relied on were of no use absent evidence of the critical elements.

p. 9
04

Customary/implied trust in favor of the appellant

Holding

The deceased intended all his children, particularly the appellant, to have a share; the 1st respondent acquired the title through wrongdoing and held it subject to the appellant's interest.

Reasoning

The appellant's occupation was undisputed; the 1st respondent failed to call Festus to deny her entitlement, could not explain the delay in transfer until 2007, and acted to unjustly enrich himself. Marriage of the appellant was irrelevant to her rights.

p. 9

Legal principles established

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  • A transfer of a deceased person's land without letters of administration is a nullity; a title obtained through such wrongdoing cannot sustain a bona fide purchaser defence.
  • When a title is under challenge, the entire paper trail of its acquisition becomes an issue.
  • Submissions do not amount to evidence or pleadings.

Court orders

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  1. 1.Appeal allowed; suit in the lower court allowed by cancelling the transfer of L.R. No.xxxx to the 1st respondent and its combination with L.R. No. xxxx and the subsequent subdivisions
  2. 2.Transfers and registration of L.R. No.xxxx and xxxx in favor of the 2nd and 3rd respondents cancelled and/or invalidated
  3. 3.Suit land to revert to the name of the late M'MK as at the date of his death, to be dealt with in accordance with the law of succession in favor of the appellant
  4. 4.Permanent injunction issued restraining the respondents from interfering with the appellant's quiet, peaceful, actual and exclusive possession, cultivation, use, development and enjoyment of L.R. No.xxxx and its resultant subdivisions
  5. 5.Costs of the appeal and the lower court suit to the appellant, to be met by the 1st respondent

Authorities

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Legislation

  • Registered Land Act (repealed)Sections 27 and 28
  • Land Registration ActSections 24, 25, 26, 28, 107, 62(1)
  • Trustee ActNot specified
  • Constitution of Kenya (retired)Section 82(1)
  • Constitution of Kenya, 2010Articles 27, 60(f)
  • Probate and Administration RulesRule 26(2)

Cases cited (29)

  • Gitobu Imanyara & 2 others vs AG
    (2016) eKLR

    Duties of a first appellate court on re-evaluation of evidence

  • Abok James Odera t/a AJ Odera & Associates vs J.P Machira t/a Machira & Co Advocate
    (2013) eKLR

    First appellate court must re-evaluate and re-analyze the record and give reasons

  • Oluoch Eric Gogo vs Universal Corporation Ltd
    (2015) eKLR

    Supports first appellate re-evaluation duty

  • Isack Kiebia M'Inanga vs Isaaya Theuri M'Lintari & another
    Scok (2018) eKLR

    Customary trust as overriding interest; standard of proof of trust

  • Peter Gitonga vs Francis Maingi M'Ikiara
    Meru H.C. No. 146 of 2000 / (2007) eKLR

    Proof of beneficial interest and trust

  • Mumo vs Makau
    (2003) 1 KLR 13

    Cited by appellant on discrimination/inheritance

  • Kanyi vs Muthiora
    (1984) KLR 712

    Unmarried daughter's inheritance rights; houses never die

  • Dominic Otieno Ogonyo & others vs Helida Akoth Walori
    (2022) eKLR

    Cited by appellant

  • Justus Miana Muruku vs Jane Waithira Mwangi
    (2018) eKLR

    Cited by appellant

  • Elijah Makeri Nyagwara vs Stephen Mungai Njuguna & another
    Eldoret ELC No. 609B of 2012

    Indefeasibility of title; fraud must be pleaded and proved

  • Kinyanjui Kamau vs George Kamau
    (2015) eKLR

    Cited by 1st respondent on fraud/burden of proof

  • Mbasa vs Mbasa
    (2020) eKLR

    Bona fide purchaser for value without notice

  • Mohammed vs Duba & another
    (2022) KECA 442 (KLR)

    Elements a bona fide purchaser must prove

  • Katende vs Haridar & Co. Ltd
    (2008) 2 E.A 173

    Elements of bona fide purchase for value

  • Juletabi African Adventure Ltd vs Christopher Michael Lockley
    (2017) eKLR

    Cited by 3rd respondent on trust

  • Muthuita vs Muthuita
    (1982-1988) 1 KLR 42

    Trust is a question of fact to be proved by evidence

  • Alice Wairimu Macharia vs Kirigo Philip Macharia
    (2019) eKLR

    Cited by 3rd respondent on trust

  • Peter Ndungu Njenga vs Sophia Watiri Ndungu
    (2000) eKLR

    Intention of parties must be clearly determined before a trust is implied

  • Twalib Hatayan & another vs Saggar Ahmed Al-Heidy and others
    (2015) eKLR

    Definition and classification of express, constructive and resulting trusts

  • Mukindia Kimuru and another vs Margaret Kanario
    (2000) eKLR

    Customary trust is a matter of fact to be proved; Kimeru patrilineal inheritance

  • Kanyi Muthiora vs Maritha Nyokabi Muthiora
    (1984) eKLR

    Unmarried daughter inherits a share like a son in absolute ownership

  • Julius Mbuba Kanga and another vs M'Nairobi Njeru
    (2018) eKLR

    Article 27 equality in inheritance

  • Lucy Wangui Mwangi vs Bernard Githii Mwangi
    (2019) eKLR

    Trusts may emerge from evidence land was reserved for family

  • James Kiarie vs Geoffrey Kinuthia & another
    (2012) eKLR

    Occupation relevant but not necessary to establish trust

  • Njeru Kuru vs Beatrice Waithera & others
    (2004) eKLR

    No distinction between married and unmarried daughters

  • Re-Estate of M'Muthaunia Mwendwa (deceased)
    (2018) eKLR

    Daughter's rights not defeated by marriage

  • Phillicery Nduku Mumo vs Nzuki Makau
    (2002) eKLR

    Implied trust where land fraudulently obtained without due process

  • Francis Muthui Muthangani vs Alice Gathigia Menja
    (2021) eKLR

    Implied trust in fraudulent acquisition circumstances

  • Heartbeat Ltd vs Ngambwa Heartbeat
    (2018) eKLR

    Constructive trust may be imposed against one who acquired property by wrongdoing

On appeal from
Senior Principal Magistrate's Court at Githongo
Githongo PM ELC No. 19 of 2020
Jurisdiction invoked
First appeal from the senior principal magistrate's court (Environment and Land Court appellate jurisdiction)

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, "MGM'M v DMM'M & 2 others", Case Analysis (2023). Environment and Land Appeal E097 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21957/eng@2023-11-29

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