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ELCPartially Allowed· [2024] KEELC 5817 (KLR)

Kibuna & another v Kibuna & 6 others (Environment & Land Case 491 of 2017) [2024] KEELC 5817 (KLR)

Environment and Land Court
31 July 2024
8,201 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled land registered to family members without succession papers, ruling that a deceased person's property must pass through proper succession, not informal family agreements.

What this practically means

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Executive summary

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The Plaintiffs, son and grandson of the late Kibuna Ndegwa, sued family members (1st-4th Defendants) and land officials (5th-7th Defendants) over Title No. Nairobi/Block 126/773, originally Plot 701 of Ng'undu Farmers Co-operative Society, in which the deceased held three shares. They sought a permanent injunction, a declaration that the transfer to the 1st-4th Defendants was null and void, and orders that the 2nd Plaintiff be declared beneficial owner by adverse possession or inter vivos gift and registered as proprietor. The Defendants countered that the Plaintiffs occupied the land only with the deceased's permission and that the family had agreed, in meetings attended by the 1st Plaintiff, to register the property in the 1st-4th Defendants' names representing the deceased's three households, since property cannot be registered in a dead person's name. The court framed five issues. It held it had jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act, as the claim was one on title to land, not a succession distribution dispute; the locus objection also failed. On the merits, the claim of gift inter vivos failed because nothing was in writing and the deceased never transferred the shares during his lifetime. The adverse possession claim failed because the possession was permissive and, against the first registrants, the 12-year period had not run from the 2013 registration before the 2017 suit. However, the registration in favour of the 1st-4th Defendants breached Sections 45 and 55 of the Law of Succession Act, amounting to intermeddling and fraud, and following Dina Management, their title was not indefeasible. The court declared the transfer and registration null and void ab initio, ordered the register cancelled and the property registered in the deceased's name pending succession, and awarded costs against the 1st-4th Defendants.

Key legal issues

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01

Jurisdiction of the ELC over succession-tinged land disputes

Holding

The ELC has jurisdiction because the claim is one on title to land, not a distribution dispute within a succession cause

Reasoning

The court traced jurisdiction to Article 162(2)(b) and Section 13 of the ELC Act, and relying on Mbula Muoki Ndolo and In Re Estate of Alice Mumbua Mutua, noted that claims by or against third parties to an estate fall outside the probate framework. The Plaintiffs disclaimed beneficiary status, founding their claim on gift inter vivos and adverse possession, which is a claim on title to land vested in the ELC.

p. 10
02

Whether the Plaintiffs had locus standi

Holding

The objection failed; the Plaintiffs sued in their own names on their own claim of ownership

Reasoning

Citing Alfred Njau and Apex Finance International, the court reiterated that proper parties are a sine qua non for jurisdiction, but found that as the Plaintiffs instituted the suit in their own names asserting their own ownership rights, no question of locus arose.

03

Whether the property was gifted inter vivos to the 2nd Plaintiff

Holding

No; the gift was not completed during the deceased's lifetime

Reasoning

Applying In Re Estate of Chesimbili Sindani, the court held a gift inter vivos requires writing and completion by transfer. The Plaintiffs admitted there was nothing in writing, and between acquisition of the shares in 1984 and death in 1995 the deceased made no attempt to transfer them. Possession and documents alone did not transfer ownership; the property remained part of the estate.

p. 13
04

Whether the Plaintiffs acquired title by adverse possession

Holding

No; possession was permissive and the limitation period had not run against the registered proprietors

Reasoning

Applying Section 7 of the Limitation of Actions Act and Richard Wefwafwa Songoi, the court held that possession with the deceased's permission negates adversity. Further, against the 1st-4th Defendants as first registrants, time ran only from their 2013 registration, so by 2017 the requisite 12 years had not elapsed.

p. 13
05

Whether the registration in favour of the 1st-4th Defendants was fraudulent and irregular

Holding

Yes; it breached Sections 45 and 55 of the Law of Succession Act and was a nullity

Reasoning

The deceased's shares remained his at death; no grant of representation existed and the family could not unilaterally resolve to register the plot in the Defendants' names. The 5th Defendant's letter identifying them as owners was fraudulent, and following Dina Management, the resultant title was not indefeasible. The registration was declared null and void ab initio.

p. 15

Legal principles established

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  • A family cannot unilaterally resolve to register a deceased person's land in the names of some members; dealing with free property of a deceased person outside the Law of Succession Act constitutes intermeddling
  • A title flowing from an irregular process is not indefeasible
  • Possession permissive in origin cannot ground adverse possession, and against first registrants time runs only from registration
  • A gift inter vivos of land requires writing and completion by transfer during the donor's lifetime; mere permission to occupy does not amount to a gift

Court orders

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  1. 1.A Declaration that the transfer and the registration of Title No Nairobi/Block 126/773 to the 1st, 2nd, 3rd and 4th Defendants is null and void ab initio
  2. 2.A mandatory order directed to the Chief Land Registrar or any other appropriate Land Registrar to forthwith cancel the registration of Title Nairobi/Block 126/773 in the names of the 1st, 2nd, 3rd and 4th Defendants and have the property registered in the name of Isaiya Kibuna Ndegwa (deceased) pending the process of Succession
  3. 3.The 1st - 4th Defendants shall bear the costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 165(3)
  • Constitution of Kenya, 2010Article 40 and Article 40(6)
  • Environment and Land Court ActSection 13
  • Law of Succession ActSections 2, 45(1), 47, 55(1), 71, 79, 82
  • Limitation of Actions ActSections 7, 13, 17, 38
  • Evidence ActSections 107(1)(2), 109, 112
  • Land Registration ActSection 26(1)
  • Registered Land Act (repealed)
  • Land Control ActCap 302
  • Probate and Administration RulesRule 41(3)

Cases cited (19)

  • Owners of Motor Vessel 'Lillian S' vs Caltex Oil (Kenya) Limited
    [1989] KLR 1
  • Kakuta Maimai Hamisi vs Peris Pesi Tobiko & 2 Others
    [2013] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
  • Mbula Muoki Ndolo & Another vs Kenya Power and Lighting Company Limited
    [2017] eKLR
  • Salome Wambui Njau (suing as Administratrix of the Estate of Peter Kiguru Njuguna (Deceased) v Caroline Wangui Kiguru
    ELC (2013) eKLR
  • In Re Estate of Alice Mumbua Mutua (Deceased)
    [2017] eKLR
  • Alfred Njau & 5 Others vs City Council of Nairobi
    1983 eKLR
  • Apex Finance International Limited & another vs Kenya Anti-Corruption Commission
    [2012] eKLR
  • Goodwill & Trust Investment Ltd & Another vs Will & Bush Ltd
    SC.266/2005 (25.03.2011)
  • In Re Estate of Chesimbili Sindani (deceased)
    2021 eKLR
  • Richard Wefwafwa Songoi vs Ben Munyifwa Songoi
    [2020] eKLR
  • Solomon Muathe Mitau & 787 others vs Nguni Group Ranch
    [2017] eKLR
  • Dina Management Limited vs County Government of Mombasa & 5 Others
    [2023] KESC 30 (KLR)
  • Wambugu vs Njuguna
    [1983] eKLR
  • Gabriel Mui vs Mukindia Maranya
    [1933] EA
  • Chevron K Limited vs Harrison Wa Shutu
    [2016] eKLR
  • Mtaana Lewa vs Kahindi Ngala Mwangandi
    [2015] eKLR
  • Sophie Wanjiku John vs Jane Mwihaki Kimani
    Civil Suit 490 of 2010
  • Ratilal Gordhanbai Patel vs Lalji Makanji
    [1957] E.A
Jurisdiction invoked
Article 162(2)(b) of the Constitution as read with Section 13 of the Environment and Land Court Act

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, "Kibuna & another v Kibuna & 6 others (Environment & Land Case 491 of 2017) [2024] KEELC 5817 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5817/eng@2024-07-31

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