David Mwangi Komu Alias David Komu v Muthoni Komu

to MK. The grant was confirmed and registered in the names of the Muthoni Komu and given to James Gathira Komu, Harrison Maina Komu, and Muthoni Komu, and the title was issued on 28.12.2010. 5. The applicants herein were unaware of the presence of the succession proceedings in Nyeri until they were served with Murang’a MCELC E085 of 2025. 6. The matter came to me for directions yesterday. It was brought to my attention that the death certificate used to commence these succession proceedings was of a minor aged 16 years. The succession, however, concerned land belonging to an adult named MK. 7. The chief's letter showed that the deceased was the owner of the land and was not married. They did not indicate to the chief that the deceased was a minor. 8. The applicants herein applied vide an application dated 14.11.2025 and sought the following prayers. a. The applicant be allowed to file an objection out of time to the petition b. Grant of letters of administration made to Muthoni Komu, the petitioner herein, and confirmed on 27.11.2009, be revoked /annulled. c. Costs be borne by the administrator. 9. The grounds were that the grant was obtained fraudulently through concealment of the facts that the deceased herein is not the owner of the land parcel number Loc. 14/Gakurwe/600. The same belonged to Joseph Komu Mbuthia or KM, who died on 6.09.2000. The children of the deceased in the first and second houses occupied the said parcel. The deceased died barely 10 years after the land was allocated to his father, Joseph Komu Mbuthia. The deceased minor could not have been the absolute owner of the land. It was also stated that Nairobi succession cause number 74 of 2001 is still pending, and the applicant is one of the administrators of the estate of KM. 10. The respondent had not responded despite being served. I declined to adjourn the matter and required at least a reasonable explanation. The respondent sought to explain that the land belonged to the minor, but was evasive about how it was registered in the minor's name. I directed that this ruling be delivered today. Three factors were constant in my mind. 11. The suit land is subject to succession cause number 74 of 2001, and the deceased herein was MK and not MK. He was also a minor. Lastly, the suit filed in LEC confirms that the applicant and his siblings are in possession of the suit land. I was alive to the fact that even as a subject matter of another cause, the court must be careful in how in-depth it goes into the sharing. 12. I will thus deal with three questions before giving my final determination. The question whether the deceased MK was the registered owner or whether it was the father, MK. The first issue is whether, as of 1966, land could be registered in a minor's name. 13. The land was registered under Section 113 of the Registered Land Act, Cap 300(repealed) of the said act provides as follows: 113. (1) For the avoidance of doubt, it is declared that the name of a person under the age of twentyone years may be entered in the register either on first registration or as a transferee or on transmission. (2) Nothing in this section enables any such person to deal with land or any interest in land by virtue of such registration, and, where to his knowledge a minor is registered, the Registrar shall enter a restriction accordingly. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3913/eng@2026-03-19 2

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(3) Where a disposition by a minor whose minority has not been disclosed to the Registrar has been registered, that disposition may not be set aside only on the grounds of minority. 14. The land, having been registered in a name without indicating that the owner is a minor, then the land can only belong to an adult. 15. The last issue is the root of the title. The land was given to MK as a first registered owner. How will an 11-year-old child be registered without showing where he got the land from? The title belongs to an adult MK. He died in the year 2000. There is a succession cause that the land in question is a subject. 16. The court is satisfied that the land belongs to MK and not the deceased minor MK. 17. Knowing that there is an estate of MK that was already filed in 2001, the applicant went ahead and filled this cause. This was fraudulent. The same was a nullity since the applicant is using a death certificate of MK to start succession of MK. Having been started without a base, then the proceedings are all a nullity. In Macfoy vs. United Africa Co. Ltd [1961] 3 All E.R. 1169, Lord Denning delivering the opinion of the Privy Council at page 1172 (1) said; “ If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” 18. The proceedings were a nullity ab initio. There is nothing to salvage. They were fraudulently instituted. They are therefore set aside. Setting aside is not enough as their effect remains. None benefits from fraud. Consequently, all transfers to the deceased’s land parcel are hereby reversed. The land registrar, Murang’a County, shall delete all entries in land parcel number Loc.14/Gakurwe/600 measuring 1.2 acres (0.48 ha) and revert the title to the names of the deceased. 19. The minor did not have any asset except the assets of the late Joseph Mbuthia Komu. There is thus nothing to succeed. The entire cause is struck out. I shall, in the determination, make auxiliary orders to effect this order. 20. The net effect is that the application for revocation/annulment is allowed as aforesaid. This leaves the issue of costs, which are generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say: “ It is our finding that the position in law if that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown. 21. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR), as follows: 18. It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3913/eng@2026-03-19 3

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of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation 22. 22. Although there is eminent good sense in the basic rule of costs - that costs follow the eventit is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant. Costs follow the event. The applicant has been subjected to an unnecessary expense. Costs of Ksh. 45,000/= shall suffice. Determination 23. In the upshot, I make the following Orders: a. The application dated 14.11.2025 is allowed. The proceedings herein were a nullity ab inito. Grant of letters of administration made to Muthoni Komu the petitioner herein and confirmed on 27.11.2009 is hereby revoked /annulled. b. The land registrar, Murang’a County, shall delete all entries in Land Parcel Number Loc.14/ Gakurwe/600 measuring 1.2 acres (0.48 ha) and revert the title to the names of the deceased MK (Deceased). c. The applicant shall have costs of Ksh 45,000/= payable within 30 days in default execution do issue. d. The petitioner to surrender the title deed to Land Parcel Number Loc.14/Gakurwe/600 within 14 days. e. The matter will be mentioned before the Deputy Registrar on 8/4/2026 to confirm receipt of the said title for onward transmission to the land registrar for cancellation. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 19TH DAY OF MARCH, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE In the presence of: Mr. Isindu for the Applicant Ms. Macharia for the Respondent Court Assistant – Michael/Martin https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3913/eng@2026-03-19 4

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