Mukora & 5 others v Ndiho & 2 others

against the Defendants is for cancellation of titles to the suit properties and for division amongst the parties. 3. The Plaintis claim that the two properties emanated from Kabete/ Lower Kabete /660 which belonged to the late Robert Mwaura Ndiho. Upon his death, the Kiambu Resident Magistrates Court issued a certicate of conrmation of grant that the property be registered jointly half share each in the name of Mungai Ndiho and Nancy Wanjiru Ndiho. The adavit in support of the application for conrmation dated 13th May 1997 indicates that the property was being divided between the two houses of the late Robert Mwaura Ndiho. The two houses were of Kathleen Wahu Ndiho who was deceased and survived by Mungai Ndiho the 1st Defendant and Pauline Njeri Ndiho and Sarah Wanjiru Ndiho the 2nd and 3rd Defendant. The second house was headed by Nancy Wanjiru Ndiho. After the grant was conrmed the second house divided its property with no problem. 4. This was not the case with the 1st house. The 1st and 2nd Defendant thereafter led a consent in HCCC 225 OF 2008 in which they shared the portion of the 1st house into two parcels to be owned by the 2nd and 3rd Defendants. Two titles were issued in the name of the 2nd and 3rd Defendants which are the suit properties before this court. 5. The Plaintis are before this court to challenge the registration of the suit properties in the names of the 2nd and 3rd Defendants on the grounds that their interests in the land were extinguished by the consent in HCCC 225 of 2008. B. Summary of Parties Case 6. The Plaintis led a plaint in which they sought the following reliefs; a. Titles KABETE/LOWERKABETE/2581 and KABETE/LOWERKABETE2582 be cancelled and the land be divided amongst the Plaintis and Defendants. b. Any other relief the Honourable court may deem just and expedient in the circumstances. c. Costs to the suit. 7. They aver that the 1st Plaintis as an adopted son of the late Robert Ndiho, themselves as grandchildren of the 1st Defendant and the 6th Plainti as a purchaser were entitled to the suit property which the 1st Defendant was supposed to hold in trust for them. They request the court to cancel the titles in the names of the 2nd and 3rd Defendant so that the land can be divided amongst all the parties. 8. The 1st Plaintis case is that he was a recognized adopted son of the late Robert Ndiho. That the family had agreed that he inherit a quarter of the land set aside for the 1st house. 9. The 1st Defendant’s defence is that he was himself a victim of the fraudulent transfer of land. He testied that of the two parcels of land left by his father, one LR NO 138 Ondiri farm was used to settle loans that the deceased had acquired in his lifetime while there was an agreement as to how the remaining land was to be distributed. That before he could undertake the distribution, the 2nd and 3rd Defendant connived to le a case HCCC NO 225 of 2008 while he was admitted in hospital. The case was led on 19th May 2008 and on 26th May 2008 a consent was registered sharing the suit properties in the name of the 2nd and 3rd Defendants to the exclusion of all other beneciaries. 10. The 2nd and 3rd Defendant’s on their part state that after paying loans that the estate of their late father owed, the 1st Defendant, in collusion with their step mum Nancy Wanjiru Ndiho divided LR No 138 Ondiri Farm Scheme into 4 and 3 acres which were registered in the names of the 1st Defendant and their step mum. They claim the 1st Defendant sold the land without involving them. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18561/eng@2025-11-20 2

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11. The 2nd and 3rd Defendants contend that the 1st Defendant having sold o their share of Ondiri Farm Scheme agreed to transfer the entire 2 acres at Lower Kabete to his two sisters. This they argue is the genesis of the consent that was recorded in HCCC 225 OF 2008 and a consent subsequently issued. They state that an attempt by the Plaintis to be enjoined to the said suit was rejected by the court as the suit had been determined. They aver that the suit which is led by the children of the 1st Defendant is an attempt to disinherit them of their land. C. Submissions 12. Counsel for the Plainti submitted that the deceased 1st Plainti had established that there was an agreement on how the suit property was to be divided and that the fact that the Defendants had failed to list him in the Succession matter should not be used against him. Counsel further argued that the 2nd, 3rd and 5th Plainti had a stake on the suit property as they resided on the same. He referred the court to the case of Mukangu versus Gerald Mutwiri C A No 281 of 2000 in which the Court of Appeal held that a customary trust is an overriding interest on the land. 13. Regarding the 6th Plainti it was counsels submission that he is entitled to specic performance or at least a refund by the three Defendants. 14. The counsel for the 1st Defendant submitted that the consent in HCCC NO 225 of 2008 was arrived at via fraud as the 1st Defendant was at the time of the consent admitted in hospital. Counsel submitted that the court can void a consent Judgement that is obtained by fraud, collusion, mistake, coercion or undue duress. 15. Counsel argued that the consent which was recorded in dubious circumstances was against the agreement which the parties had reached regarding the distribution of the suit property. 16. In the end it was counsels’ submissions that a Judgement founded on fraud is not a Judgement at all. Indeed it is to be considered a nullity. 17. Counsel for the 2nd and 3rd Defendant submitted that the issues herein are Res Judicata as they had been determined in Kiambu Resident Magistrates Court and in HCCC No 225 of 2008. On the claims by the Plaintis, counsel argued that the 1st Plainti was not a son of the deceased as alleged and indeed that is why he was not listed as a beneciary in the Succession Cause no 443 of 1996 at Kiambu Resident Magistrates Court. Counsel submitted that this court does not have jurisdiction to determine the inheritance claim of the 1st Plainti. 18. Regarding the 2nd to 5th Plaintis, it was the contention of the 2nd and 3rd Defendant that any claim they have over the estate should be determined by the Succession court. Counsel referred the court to the nality of the Judgement in HCCC no 225 of 2008. He argued that the 1st Defendant had not sought to set the consent aside and had not raised any complaint with the relevant professional bodies on the claims that the consent was entered into without his authority. 19. Counsel argued that the 1st Defendants duly instructed advocates had implied general authority to compromise the suit unless proved otherwise which in this case had not been proved. D. The Issues 20. Having considered the submissions, the pleadings and the evidence by all parties the court distills the following issues for determination;Whether the suit herein is Res JudicataWhether the court should cancel the titles Kabete/ Lower Kabete /2581 and Kabete/ Lower Kabete 2582 in the names of the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18561/eng@2025-11-20 3

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2nd and 3rd DefendantsWhether the court should issue orders that the land be divided between the Plaintis and Defendants E. Analysis 21. On the question of Res Judicata the law is fairly settled. The Supreme Court in weighing in on the issue in the case of John Maritime pronounced ‘For res judicata to be invoked in a civil matter the following elements must be demonstrated: a. There is a former judgment or order which was nal; b. The judgment or order was on merit; c. The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and d. )There must be between the rst and the second action identical parties, subject matter and cause of action.(See Uhuru Highway Developers Limited v Central Bank of Kenya & others [1999] eKLR and See the decision of the Court of Appeal in Nicholas Njeru v Attorney General & 8 others Civil Appeal 110 of 2011 (2013) eKLR) 22. The Plaintis were not parties to the 2008 suit. Their attempts to join were dismissed. They have a right to be heard on their claim. A related issue submitted on at length by the 2nd and 3rd Defendant was whether in light of the consent in HCCC 225 of 2008 this court has jurisdiction to consider the issues raised in the present suit. 23. In addressing this issue the court notes that a Succession Court which is the proper court to address issues of succession had ordered that the suit property be transmitted to the 1st Defendant herein. From the evidence that was adduced before this court and which this court holds to have been the truth given the consistency of the witnesses who testied on the same, there was a family agreement on how Kabete Lower Kabete / 1814 was to be distributed. As such although the Succession Court registered Kabete / Lower Kabete/ 1814 in the name of the 1st Defendant, there are other claimants who had a legitimate expectation that he was holding it in trust for them. 24. As such there was a customary trust which is an overriding interest under Section 28 (b) of the Land Registration Act. The 2nd and 3rd Defendants wished to have the property registered in their names as they argued that the 1st Defendant had sold the land at Ondiri for his own benet. The only court which had jurisdiction to transmit the property to them was the Succession court which also has powers to determine any oence by an administrator. The civil court had no jurisdiction to determine the issues which arose from a Succession matter. The Court in HCCC 225 of 2008 through the impugned consent sought to redistribute the property outside the Succession cause a jurisdiction which it did not have. The consent disregarded overriding interests, excluded beneciaries contrary to a family agreement on distribution of the estate, and redistributed estate property outside the succession cause. 25. Having been recorded in a court without jurisdiction, the consent is a nullity and the transfer registered subsequent to the consent is illegal under Section 26(1)(b) Land Registration Act. This court nds that there are sucient grounds to cancel the transfer of titles which resulted from the consent which was made without jurisdiction and without considering the overriding interests. 26. As to whether this court can grant orders that the land be distributed as agreed upon by the parties. This is an issue which falls outside the jurisdiction of this court. This courts jurisdiction is limited to deciding on the issue of the titles only. This court has no jurisdiction to consider whether the claimants are entitled to the estate or not. It is only the succession court that is clothed with jurisdiction to determine https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18561/eng@2025-11-20 4

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the beneciaries and their respective interests in the estate of the deceased. This is the court which has jurisdiction to determine if the 1st Defendant wasted any of the estate. 27. As I nish I would like to observe that consents remain the greatest reason for continued litigation and heartbreak in the court corridors. In this instance although the court did not delve into the issue of the circumstances of recording of the consent, it is a matter of record and general consensus that HCCC 225 of 2008 was led on 19.5.2008; 6 days later a consent that had serious ramications was led before a Deputy Registrar and a decree issued. The decree does not even indicate the name of the Deputy Registrar who recorded the consent. All this while demonstrably one of the parties was admitted in hospital. It will be essential that guidelines are developed that will reduce the number of issues that arise from consents. Ultimately, this will reduce the litigation that is borne out of consents. 28. On the question of costs I note that this is a family matter and that arose out of the distribution of the estate of the deceased. Each party should bear their own costs. Disposition 29. The court makes the following orders; a. The decree in HCCC 225 of 2008 is a nullity and the titles arising therefrom Kabete/ Lower Kabete /2581 and Kabete/ Lower Kabete 2582 are hereby cancelled b. The titles shall revert to Kabete/ Lower Kabete / 1814 in the name of the 1st Defendant as had been ordered by the Succession Court. c. The Succession Court in Kiambu shall determine the distribution. d. There shall be restriction on any transfer of Kabete/ Lower Kabete / 1814 save for as shall be determined by the Succession Court. This Restriction shall be noted on the register and enforced by the Chief Land Registrar until the Succession Court determines the distribution of Kabete/ Lower Kabete / 1814. e. Each party shall bear their own costs for this suit RULING SIGNED DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 20TH DAY OF NOVEMBER 2025 JUDY OMANGE JUDGE In the presence of Court Assistant Catherine Ms. Ondabu for Mr Mwanza Gachie for 1st Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18561/eng@2025-11-20 5

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