Alice Wanjiku Muthamia & another v Nehemiah Muthamia & another [2017] KEELC 524 (KLR)
- Court
- Environment & Land Court
- Case number
- 524
- Citation
- [2017] KEELC 524 (KLR)
- Decided
- 7 December 2017
The sub division of the suit land and subsequent transfer by the first defendant to the second defendant was null and void.
Facts
The plaintiffs, Alice Wanjiku Muthamia and her son James Kimathi Muthamia, claim adverse possession of a parcel of land (LR NO. ABOGETA/U-CHURE/175) registered in their husband's name. The defendants, Nehemiah Muthamia and his son Frankline Kinoti Gikunda, claim ownership of the land. The plaintiffs allege that their husband had a fiduciary duty to consult them before disposing of the land.
Issues
- Whether the 1st defendant was registered as the owner of the original parcel No. ABOGETA/UPPER CHURE/175 in trust for the plaintiffs?
- Whether the 2nd defendant can be said to be a bona fide purchaser for value without notice?
- Whether the trust if any ceased upon sub division and transfer of part of the original parcel No. 175?
- Who will bear the costs of this suit?
Reasoning
The court found that the first defendant had a fiduciary duty to consult the plaintiffs before disposing of the land. The plaintiffs had a spousal right over the matrimonial property, and the transfer was fraudulent.
Outcome
The plaintiffs' claim was upheld, and the defendants were ordered to return the land to the plaintiffs.
Orders
- The purported sub division of land parcel No. ABOGETA/U-CHURE/175 into three portions and sale of a portion No. ABOGETA/U-CHURE/1920 measuring two (2) acres to the 2nd defendant herein was null and void.
- The 1st defendant who is the husband to the first plaintiff was holding that land in trust with him.
- The title deed transferred in favour of the 2nd defendant in parcel No. ABOGETA/U-CHURE/1920 to be transferred to the first defendant.
- The three parcels of land No. ABOGETA/U CHURE/1919 and 1920 shall be held by the first defendant in trust for the plaintiffs.
- A prohibition order is hereby issued restricting any dealings with the three parcels of land until further orders of this Honourable court.
- The costs of this suit shall be borne by the defendants.
Remedies
- The plaintiffs' claim was upheld, and the defendants were ordered to return the land to the plaintiffs.
Authorities cited
Legislation (1)
- Land Registration Act (Cap 300) Laws of Kenya 2012
Cases cited (1)
- ESTHER NTIRA M'IKIUGU & TWO OTHERS -VS- M'IKIUGU M'MWIRANI & ANOTHER HCCC NO. 44 OF 2005 (MERU) UNREPORTED
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