Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC No. 7 of 2015 (consolidated with ELC No. 45 of 2018)· [2024] KEELC 3921 (KLR)

Mumo alias Mbisi Daniel & 3 others v Daniel & another (Sued as the personal representative of Daniel Mulwa Kavithi alias Daniel Mulwa Kavithi (Deceased) & 5 others (Environment & Land Case 7 of 2015 & 45 of 2018 (Consolidated)) [2024] KEELC 3921 (KLR)

Environment and Land Court
29 April 2024
4,906 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

#

A Machakos court cancelled land titles fraudulently obtained from co-operative shares, ruling that dealings with a deceased person's property without administration are void.

What this practically means

#

Executive summary

#
Two related suits, ELC No. 7 of 2015 and ELC No. 45 of 2018, heard jointly by consent, concerned Shares No. 241 and 350 at Lukenya Ranching and Farming Co-operative Society Limited and the parcels of land emanating from them. The Plaintiffs claimed that Share No. 241 belonged to Freizer Mumo, who had given his father, the late Daniel Mulwa Kavithi, money to purchase it in 1979, and that Share No. 350 belonged to their late mother, Tabitha Mulwa. They alleged that Daniel Mulwa Kavithi, a Society official, fraudulently transferred both shares to himself and disposed of the resultant parcels, some directly to the 2nd Defendant (his second wife, Magdalene Wayua Daniel), and that he dealt with Tabitha's estate without Letters of Administration. The 1st Administrator of the deceased's estate admitted the claim; the 2nd Defendant contested it, asserting her late husband was the beneficial owner and that she held valid titles. The 3rd and 4th Defendants filed no defences. The court framed three issues: ownership of the shares, the deceased's capacity to dispose of them, and entitlement to the orders sought. Examining the Society's By-laws, allotment letters, receipts, abstracts of title and searches, the court found no registered transfers or nominee documents; the 2nd Defendant's testimony on nominations was hearsay. The court held the deceased illegally transferred the shares, intermeddled with Tabitha's estate contrary to Section 45 of the Law of Succession Act, and that the 2nd Defendant's titles had a fettered root. Applying Sections 26(1) and 80 of the Land Registration Act, the court allowed both suits, ordering cancellation of the impugned titles and substitution of Freizer Mumo for parcels from Share No. 241 and the Estate of Tabitha Mulwa for parcels from Share No. 350, with costs borne by the 3rd Defendant and the deceased's estate.

Key legal issues

#
01

Ownership of Shares No. 241 and 350 at Lukenya Ranching and Farming Co-operative Society

Holding

Share No. 241 was solely owned by Freizer Mumo and Share No. 350 was owned by the late Tabitha Mulwa; Daniel Mulwa Kavithi had no documented transfer or nomination and had no capacity to dispose of the shares or the lands emanating therefrom

Reasoning

The court examined allotment letters, payment receipts, abstracts of title and searches. Share No. 241 was registered in Freizer Mumo's name in 1980, and Share No. 350 in Tabitha Mulwa's name with payments in 1977, 1978 and 1980. The Society's By-laws required a registered, approved transfer. No proxy or nominee documents were produced by the 2nd Defendant, whose testimony on the alleged nominations was treated as inadmissible hearsay. Cancellations and substitutions of names were made by the deceased as a Society official without adhering to the By-laws.

p. 7
02

Validity of the titles acquired by the 2nd Defendant and the deceased over parcels emanating from the two shares

Holding

The titles were invalid because the root of title was fettered; the parcels emanating from Share No. 241 revert to Freizer Mumo and those from Share No. 350 revert to the Estate of Tabitha Mulwa, subject to Section 80 of the Land Registration Act

Reasoning

Relying on Section 26(1) of the Land Registration Act and Section 80 (rectification), and associating with the Court of Appeal decisions in Joseph N.K. Arap Ng'ok and Arthi Highway Developers, the court held that although registration confers prima facie indefeasible title, a title acquired where the vendor dealt with property that did not belong to him is fettered at its root and cannot stand. The deceased's intermeddling with Tabitha's estate without Letters of Administration contravened Section 45 of the Law of Succession Act, rendering those transactions void ab initio.

p. 9
03

Whether the Plaintiffs proved their claims on a balance of probability

Holding

The Plaintiffs in both suits proved their cases on a balance of probability and judgment was entered in their favour

Reasoning

The documentary evidence produced by the Plaintiffs (letters of allotment, payment receipts, abstracts of title, official searches and Society registers) corroborated their testimony. The 1st Administrator admitted the claim as DW1. The 2nd Defendant failed to tender evidence to controvert the Plaintiffs' averments that Tabitha Mulwa owned Share No. 350 and the parcels emanating from it. The Defendants also failed to file written submissions despite leave.

Legal principles established

#
  • A certificate of title is prima facie evidence of ownership but may be challenged on grounds of fraud or misrepresentation, or where acquired illegally, unprocedurally or through a corrupt scheme
  • Where the root of title is fettered by fraud, the title so acquired is not indefeasible and may be cancelled
  • Dealing with a deceased person's estate without Letters of Administration constitutes intermeddling and renders such transactions void ab initio

Court orders

#
  1. 1.A declaration that the allocation of LR Number Mavoko Town Block 3/2261, 2563, 1306 and 1493 to the 1st Defendant Daniel Mulwa Kavithi (deceased) was illegal and therefore null and void
  2. 2.A declaration that transfers effected by Daniel Mulwa Kavithi (deceased) and the Society to the 2nd Defendant in respect of Mavoko Town Block 3/2563, 1306 and 1493 are a nullity
  3. 3.All registrations in respect of Mavoko Town Block 3/2563, 1306 and 1493 to be cancelled and rectified by deleting the names of Daniel Mulwa Kavithi (deceased) and the 2nd Defendant and substituting the name of Freizer Mumo alias Mbisi Daniel
  4. 4.The 4th Defendant to cancel the title deed issued in the name of the late Daniel Mulwa Kavithi (deceased) in respect of Mavoko Town Block 3/1306 and 1493 and substitute the name of Freizer Mumo alias Mbisi Daniel
  5. 5.The 4th Defendant to cancel the title deed issued to the 2nd Defendant in respect of Mavoko Town Block 3/2563 and substitute the name of Freizer Mumo alias Mbisi Daniel
  6. 6.A declaration that the allocation of LR Number Mavoko Town Block 3/1498 to the late Daniel Mulwa Kavithi was illegal and therefore null and void
  7. 7.A declaration that the transfers effected by the Lukenya Ranching and Farming Cooperative Society directly to the 2nd Defendant in respect of Mavoko Town Block 3/1311 and 2364 are a nullity
  8. 8.The 4th Defendant to cancel the titles deeds issued to the late Daniel Mulwa Kavithi and the 2nd Defendant in respect of Mavoko Town Block 3/1498 and Mavoko Town Block 3/1311 and 2364 respectively and substitute the same with the Estate of Tabitha Mulwa
  9. 9.Costs of the suit awarded to the Plaintiffs but to be borne by the 3rd Defendant and the Estate of Daniel Mulwa Kavithi

Authorities

#

Legislation

  • Law of Succession ActSection 45
  • Law of Succession ActSection 55
  • Land Registration ActSection 26(1)
  • Land Registration ActSection 80
  • Registration of Titles Act (repealed)Section 23(1)
  • Lukenya Ranching and Farming Co-operative Society By-lawsBy-laws 10, 20, 21, 22

Cases cited (9)

  • RNM v JMN & 5 Others (2020) eKLR
    (2020) eKLR
  • Zacharia Wambugu Gathimu & Another v John Ndungu Maina (2019) eKLR
    (2019) eKLR
  • Stephen Gachau Githaiga & Another v Attorney General (2015) eKLR
    (2015) eKLR
  • Motex Knitwear Limited v Gopitex Knitwear Mills Limited (2009) eKLR
    (2009) eKLR
  • Trust Bank Limited v Paramount Universal Bank Limited & 2 Others (2009) eKLR
    (2009) eKLR
  • Kenneth Nyaga Mwige v Austin Kiguta
    Court of Appeal CA No. 140 of 2008
  • Gerald Oyugi v Evans Okeyo Mochere (2019) eKLR
    (2019) eKLR
  • Joseph N.K. Arap Ng'ok V Moijo Ole Keiwua & 4 Others [1997] eKLR
    [1997] eKLR
  • Arthi Highway Developers Limited Vs West End Butchery Limited and Others
    Civil Appeal No. 246 of 2013
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (Environment and Land Court Act), suits heard jointly by consent of the parties

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mumo alias Mbisi Daniel & 3 others v Daniel & another (Sued as the personal representative of Daniel Mulwa Kavithi alias Daniel Mulwa Kavithi (Deceased) & 5 others (Environment & Land Case 7 of 2015 & 45 of 2018 (Consolidated)) [2024] KEELC 3921 (KLR)", Case Analysis (2024). ELC No. 7 of 2015 (consolidated with ELC No. 45 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3921/eng@2024-04-29

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