Mwihaki v Kigathi & 2 others (Environment & Land Case 572 of 2015) [2024] KEELC 3558 (KLR)
The bottom line
#A Kenyan court cancelled two land titles because their owners couldn't prove how they got the land, returning the property to the deceased owner's estate.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of one of three joint executrix to maintain a counterclaim alone
The 3rd Defendant, as one of the duly appointed executrix, has capacity to originate and maintain the counterclaim in her own name for protection of the estate; failure to join co-executrix does not negate capacity
The grant of probate was issued jointly to three executrix under Section 71 of the Law of Succession Act, but the court held that any one or more may sue to protect and preserve the estate and render accounts. No co-executrix contested the 3rd Defendant's capacity. Upholding the objection would glorify a technical objection contrary to Article 159(2)(d) of the Constitution.
Whether the Plaintiff proved a lawful root of title
The Plaintiff failed to prove the root of his certificate of title; it was not traceable to a lawful process and is vitiated by illegality
The transfer instrument from Mae Properties Ltd to the first registered owners was never produced; the Plaintiff's title omitted the original parcel number; the deed plan of 1995 was inconsistent with a first registration in 2007; no proof of payment of purchase price or stamp duty was tendered. Letters from the Chief Land Registrar's office confirmed the property belonged to the estate of Kariuki Gikang'a.
Whether the 2nd Defendant acquired lawful rights to the suit property
No; its claim was extinguished because it obtained judgment for refund of the purchase price from its vendor, and the Registrar's unquashed decision of 11th May 2010 cancelled its transfer
Having procured judgment for refund of the purchase price, the 2nd Defendant cannot simultaneously claim ownership. It also participated in proceedings before the Principal Registrar of Titles culminating in the decision of 11th May 2010 which found its title unlawful and cancelled it, and that decision has not been quashed.
Whether the 3rd Defendant established lawful rights to the suit property
Yes; the documents demonstrated a clear, unbroken chain from Mae Properties Ltd to the deceased, confirming the property belongs to the estate of Kariuki Gikang'a
The certificate of title issued to the deceased, the transfer instrument from Mae Properties Ltd, the cadastral and deed plans, and the Registrar's letters of 11th May 2010 and 27th July 2015 all vindicated the deceased's title. The Assistant Director of Survey confirmed the 3rd Defendant's documents tally with the cadastral plan. However, mesne profits failed for want of pleading and proof.
Conduct of the Deputy Chief Land Registrar as a witness
The court censured the Deputy Chief Land Registrar for selectively producing documents and denying knowledge of the 11th May 2010 letter, which his own office had confirmed existed
Public officers must avail all records without cherry picking and must be candid with the court under Article 232 values of public service. The witness's claim never to have seen the letter dated 11th May 2010 was contradicted by the Chief Land Registrar's own letter of 27th July 2015 confirming it arose from the deed file.
Legal principles established
#- Where there are two or more competing titles over the same land, the court must investigate the root of each title and uphold the one that conforms to procedure and traces its root without a break in the chain
- A registered proprietor whose root of title is under challenge must go beyond the instrument of title and prove the legality of acquisition
- An illegal title is vitiated regardless of whether the beneficiary was party to the fraud
- One of several joint executrix/administrators has capacity to file suit for protection and preservation of the estate without joining the others
- A party who responds to pleadings without protest may be barred by waiver, estoppel and acquiescence from later objecting to a co-party's participation
Court orders
#- 1.The Plaintiff's suit dismissed
- 2.The 2nd Defendant's counterclaim dismissed
- 3.The 3rd Defendant's counterclaim allowed with declarations that she is the lawful owner of L.R No. 7785/824 [I.R No. 30597/572]
- 4.Declaration that the sale and transfer of the suit property to the Defendants was illegal, fraudulent and void
- 5.Revocation, cancellation and nullification of the certificate of title in the name of the Plaintiff issued 23rd April 2015
- 6.Revocation and nullification of the certificate of title in favour of the 2nd Defendant issued 20th January 2009
- 7.Cancellation, revocation and nullification of the certificate of title issued to Godfrey Ngatia Njoroge on 8th March 2001
- 8.Plaintiff ordered to vacate and hand over vacant possession to the 3rd Defendant within 90 days
- 9.Eviction order to issue without further recourse to the court in default of vacating
- 10.Costs of eviction to be certified by the Deputy Registrar and recoverable from the Plaintiff
- 11.Permanent injunction issued restraining the Plaintiff and 1st and 2nd Defendants from interfering with the suit property
- 12.Costs of the suit and of the 2nd Defendant's counterclaim awarded to the 3rd Defendant
- 13.Costs of the 3rd Defendant's counterclaim awarded against the Plaintiff and 2nd Defendant jointly and/or severally
- 14.Any other relief not expressly granted declined
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court; Article 159(2)(d) of the Constitution invoked on technical objections
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwihaki v Kigathi & 2 others (Environment & Land Case 572 of 2015) [2024] KEELC 3558 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3558/eng@2024-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.