Mbae (Suing as the Legal Representative Administrator of the Estate of Silas Judah Mbae - Deceased) & another v Mwamba & 5 others; M’arimi & another (Interested Parties) (Environment and Land Case 42 of 2018) [2024] KEELC 215 (KLR)
The bottom line
#The Environment and Land Court in Meru cancelled fraudulent land transactions made without proper succession authority, confirming that no one benefits from dealing with a deceased person's land without a valid grant.
What this practically means
#Executive summary
#Key legal issues
#Whether fraud, illegality and impropriety in the transfer and subdivision of LR No. Kiirua/Naari/54 was proved
The claim on fraud, illegality and unprocedural dealing was proved; the 1st defendant misrepresented himself to the Land Registrars, obtained title without a confirmed grant or discharge of charge, and the subsequent subdivisions were nullities
Fraud was specifically pleaded in the plaints. The 1st defendant never filed a defense and admitted on oath that he misrepresented facts to the 2nd–4th defendants, who effected the transmission and subdivision without a discharge of charge or consent. The succession grant relied upon was confirmed non-existent. The 2nd–4th defendants filed no defense or evidence. The court found the legal procedure on discharge of charge was ignored and the entries were fraudulent and illegal.
Whether the 2nd plaintiff's claim was barred by limitation or the staleness of the unexecuted decree
The cause of action arose on 7.3.2018 with the fraudulent removal of the charge and transfer; the limitation defence failed; the acknowledgment of the debt by the 1st, 5th and 6th defendants, and their failure to plead and prove the limitation defence, defeated it
The court had already ruled on the preliminary objection that limitation was not a pure point of law. The 5th and 6th defendants, whose defense against the 2nd plaintiff was struck out, produced no pleadings, judgments or decrees from the former suits. The 1st, 5th and 6th defendants acknowledged the debt and offered to redeem the property in a letter of 16.8.2016, engaging the doctrine of estoppel against them.
Whether the interested parties were innocent purchasers for value without notice
Neither interested party qualified as an innocent purchaser for value without notice
The bar for innocent purchaser protection has been set higher by the Supreme Court in Dima Management and Torino Enterprises. The 1st interested party produced no evidence of consideration, no sale agreement, consented to a judgment while the suit and criminal charges were pending, and did no due diligence beyond an official search. The 2nd interested party dealt with a party with no better title, knew the land was charged, never conducted a search, and his adverse possession claim was time-barred.
Whether the 5th and 6th defendants could maintain a defense and counterclaim against the 2nd plaintiff in liquidation
They could not; leave under Section 56 of the Kenya Deposit Insurance Act was never sought or obtained, and the struck-out pleading became inconsequential
The court had struck out their amended defense and counterclaim for want of leave under Section 56. They never sought leave to re-file or amend, and instead relied on a fallback preliminary objection based on the struck-out pleading. Further, their limited grant covered only Meru ELC No. 21 of 2019 (OS), which had been dismissed, and they had appealed against it, offending Section 6 of the Civil Procedure Act on sub judice.
Legal principles established
#- A transfer of a deceased person's property by a person without letters of administration is a nullity and intermeddling with the estate
- A counterclaim against an institution in liquidation filed without leave under the Kenya Deposit Insurance Act is incompetent
- Once a pleading is struck out, it becomes inconsequential and cannot be relied on as a fallback
- Submissions not based on facts pleaded or documents tendered do not amount to evidence
- One cannot disown an illegality and simultaneously seek to benefit from it
Court orders
#- 1.The claim by the 1st and 2nd plaintiffs is allowed with costs in terms of prayer (a), (b) and (c) of the amended plaint dated 1.4.2019 and prayers (a), (b), (c), (e) & (f) of the further amended plaint dated 11.8.2020
- 2.Any defendants, agents, interested parties or persons claiming under the 1st defendant on the suit properties shall be issued with the mandatory statutory notice of eviction in line with the law
- 3.The claims by the 5th and 6th defendants against the primary plaintiffs and the 1st defendant in the primary suit are dismissed with costs to the primary plaintiffs
- 4.The interested parties' claims are dismissed with costs to the primary plaintiffs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over LR No. Kiirua/Naari/54 and its subdivisions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbae (Suing as the Legal Representative Administrator of the Estate of Silas Judah Mbae - Deceased) & another v Mwamba & 5 others; M’arimi & another (Interested Parties) (Environment and Land Case 42 of 2018) [2024] KEELC 215 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/215/eng@2024-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.