https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4905

**REPUBLIC OF KENYA** **IN THE ENVIRONMANT AND LAND COURT AT NYANDARUA** **ELCA NO 59 OF 2023** **GRACE WANJIRU NGATIA.............................................APPELLANT** **VERSUS** **RAPHAEL NDIIRITU KARIUKI.....................................RESPONDENT** **JUDGMENT:** Before me is an Appeal from the Judgment of the Honourable Charles Obulutsa, Chief Magistrate, Nyahururu CMC ELC NO. 294 of 2017 delivered on 11/3/2021. The Appellant herein, Grace Wanjiru Ngatia suing as the legal Representative of the Estate of her late husband, Joseph Ngatia Kariamburi was the Plaintiff in the lower Court and Raphael Ndiritu Kariuki, the Respondent herein was the Defendant. The prayers therein by the Appellant herein were for: - 1. A Declaration that the Estate of Joseph Ngatia Kariamburi (Deceased) is the sole, absolute and registered proprietor of L.R. NYANDARUA/MBUYU/256. 2. An Order cancelling all the entries entered after entry No. 4 of 25/2/2005 on the register of L.R No. NYANDARUA / MBUYU /256. 3. Closure of register for L.R NYANDARUA/MBUYU/1302 and 1303 and cancellation of Title Deeds issued pursuant to these registers. 4. Costs of the suit. 5. Any other of further relief that the Court may deem fit and just to grant. The said Plaint is dated 25/9/2017 and the grounds upon which the suit is predicated are that the suit property was at the time of his death registered in the name of Joseph Ngatia Kariamburi. The said Kariamburi died on 11/4/2006 and slightly more than a month after his demise on 19/5/2006 the register in respect to the suit land was closed on sub-division and new entries opened as L.R No. NYANDARUA/MBUYU/1302 and 1303 on 19/5/2025. The Respondent caused himself to be registered as the sole and absolute proprietor of L.R No. NYANDARUA/MBUYU/1303 and retained the Deceased as the Proprietor of L.R No. NYANDARUA/MBUYU/1302. This was done fraudulently. In a Defence dated 6/12/2017, the Respondent denied all the averments of the Plaint but stated that the new register was opened to reflect the changes in favour of the Respondent who had already paid the full purchase price and that the process of the transfer, sub-division and issuance of mutation forms were started way before the Deceased person passed away and that he had executed all the relevant documents having been paid the full purchase price. He therefore prayed that the suit be dismissed with costs. After the hearing of the case, the Appellant’s suit was dismissed on 11/3/2021 with the learned trial magistrate observing that on a balance of probability, the Appellant had failed to prove his case. It is the learned trial magistrate’s analysis of the evidence that Joseph Ngatia Kariamburi was the registered owner of the suit land i.e. L.R No. NYANDARUA/MBUYU/256 as shown in the Green card and mutation forms and that he died on 11/4/2002. And that the entry was closed on 19/5/2006 after sub-division. He further said that it was the Respondent’s case that he entered into a sale agreement with the Deceased dated 29/3/2006 for the purchase by the Respondent of 0.809 Hectares to be curved out of plot No. 256. There were 5 witnesses to the Agreement and that consent was obtained the same date i.e. on 29/3/2006. The said Trial Magistrate observed that if the Deceased died on 11/4/2006 then it is possible that he entered into the agreement on 29/3/2006 before his demise. He further said that the survey was done the following day on 30/3/2006 and completed on 5/4/2006 before the Deceased passed away on 1/4/2006 and the register closed on 19/5/2006 when the 2 Titles were issued i.e. 1302 and 1303. He also held that the Deceased had separated from his wife and that is why she was not in the picture. The trial magistrate insisted that the transfer was done in the lifetime of the Deceased and that the Respondent was able to demonstrate that he purchased the suit land and consent to transfer was given way before the vendor died. He concluded that this portion does not form part of the Estate of the Deceased and is free property as envisaged under section 3 of the Law of Succession Act and that the fact that the Title Deed was issued after the death of the Deceased vendor does not impute fraud or vitiate the agreement. He finally said that it would have been different if the agreement was purported to have been made after the death of the owner. The Appellant being dissatisfied with the decision of the lower Court appealed against the said Judgment for the following: - 1. The Appeal be allowed and the Judgment delivered on 11th February, 2021 in Nyahururu CMC ELC 294 of 2017 be set aside. 2. That Judgment be entered in favour of the Appellant for: - 3. A Declaration that the Estate of Joseph Ngatia Kariamburi ( Deceased) is the sole , absolute and registered proprietor of L.R NYANDARUA/ MBUYU/256. 4. An Order cancelling all the entries entered after entry number 4 of 25th February, 2005 on the register of NYANDARUA/MBUYU/256. 5. Closure of registers for NYANDARUA/ MBUYU/1302 and 1303 and cancellation of Title Deeds issued pursuant to these registers. 6. The Respondents be ordered to pay the costs of this Appeal and the costs in Nyahururu CMC ELC 294 OF 2017. Which prayers were founded on the following grounds: 1. The Learned Magistrate erred in law and fact by failing to find that with effect from 11th April, 2006 (when the deceased died), any asset of his estate, and in particular L.R NYANDARUA/ MBUYU/256 which formed part of his Estate could only be governed by the Law of Succession Act. 2. The Learned Magistrate erred in law and fact by failing to find that the sub-division of L.R NYANDARUA/MBUYU/256, and the transfer of the resultant parcels of land after the death of the Deceased could only be effected under the Law of Succession Act. 3. The learned Magistrate erred in law and fact by failing to find that L.R NYANDARUA/MBUYU/256 formed part of the free property of the Deceased’s Estate under the Law of Succession Act. 4. The learned Magistrate erred in law and fact by failing to find that the sub-division of L.R NYANDARUA/MBUYU/256 and transfer of the resultant parcels of land was fraudulent, null and void. 1. The learned Magistrate erred in law and fact by failing to find that the Respondent actively participated in fraudulent sub-division of L.R NYANDARUA/MBUYU/256 and subsequent thereto, the transfer of L.R NYANDARUA/MBUYU/1303. 2. The learned Magistrate erred in law and fact by failing to find that there was no Land Control Board that could have sanctioned a transfer of L.R NYANDARUA/MBUYU/1303 to the Respondent. 3. The learned Magistrate erred in law and fact in dismissing the Appellant’s claim with costs. The singular issue to be determined by this Court is to establish whether the Deceased, Joseph Ngatia Kariamburi ever entered into a sale agreement with the Respondent and if so when and in case the transfer was effected after his demise and whether this was lawful. The Deceased, Joseph Ngatia Kariamburi according to the Death Certificate died on 11/4/2006. He was issued with a Title Deed for NYANDARUA/ MBUYU/1303 on 25/5/2006 more than a month after he had died. The Title Deed was issued to Raphael Ndiritu Kariuki again more than a month after his demise. He is said to have filled the Mutation form on the 30/3/2006 which he never signed, about 11 days before his demise. The same was dated 5/4/2006, 6 days before he died. The letter of consent was issued on 22/3/2006 again 12 days before he died. Should a person commence a land transaction, get consent to transfer and present documents to the land’s office but dies before the transfer is effected will the process start all over again with the administrator? No, it doesn’t automatically “start all over again,” but the administrator will have to step in to complete it. What happens when the seller/transferor dies before transfer is registered? The signed documents don’t die with the person. If the transferor had already signed the transfer, got consent to transfer from the Land Control Board, presented the documents to the Land Registry then there’s already a valid contract. Death does not cancel a contract for sale of land. Under the Law of Succession Act Cap 160 and Land Registration Act 2012, the legal representative of the estate becomes the one to complete the transaction. The process continues from where it stopped. You don’t have to negotiate a new sale or get fresh consent, because consent is usually valid for a limited time, 6 months. When would it start over? You would basically restart if no transfer was ever signed before death, consent had expired and can’t be renewed or if there is a dispute in the Estate and the beneficiaries refuse to complete the sale. In the instant case, interestingly it is not shown when the Application for consent was made. Although referred to, no sale agreement was produced in Court~~.~~ The Title Deed was issued after the transferor had died. The question is, when was the Application for transfer made? Only one person had the answer to this. Once an Application is lodged for any document to be registered, the Applicant retains a form titled “Application for Registration” of the document(s) lodged for registration. The same has 6 columns as follows: 1. Date. 2. Description. 3. L.R No. 4. Title Deed File No. 5. Fee, and 6. For official use only. In this case the Respondent must have retained a copy which would have helped us to determine whether the transfer was applied for before or after the Deceased’s (Kariamburi’s) demise. Failure to produce the same must be fatal to his case since besides the land registry and himself nobody else had a copy of the same. The form shows the date the Application is made. In view of the above inconsistencies, I must allow this Appeal with costs to the Appellant and advise the Respondent herein to seek redress in the Succession Court. **Judgment dated and signed at Nyandarua this 23rd Day of July, 2026.** **MUGO KAMAU** **JUDGE** In the presence of: Samson……. C/A Mr. Wahome..….…… for the Appellant Ms.Wahome ….….……. for the Respondent.