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Court of AppealDismissedCivil Appeal No. 65 of 2011· [2013] KECA 133 (KLR)

Peter Ombui Nyangoto v Elizabeth Matundura & another [2013] KECA 133 (KLR)

Court of Appeal of Kenya
1 November 2013
OOOnyango OtienoAZAzangalalaKAKantai
4,903 words in judgment
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The bottom line

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Kenya's Court of Appeal cancelled a property bought from a dead person's estate before the family obtained a confirmed grant of letters of administration.

What this practically means

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Executive summary

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The appellant, a purchaser for value of L.R. No. Kisii Town/Block 11/68, appealed against a ruling of Musinga J. of the High Court at Kisii which, in Succession Cause No. 62 of 2009, allowed an application by the respondents for revocation of a grant of letters of administration, declaration of nullity of the sale and transfer of that property, rectification of the register to restore the deceased's name, and revocation of the grant. The deceased, Teresa Nyanchero Matundura, died in 2001 still registered as owner of three properties. A 1996 document distributing the properties amongst her sons was held by both parties not to be a will, and the Court held it was a mere expression of wish to take effect on death through the Law of Succession Act, not a gift inter vivos. Before any grant was applied for, obtained or confirmed, Daniel transferred the property to himself and then sold and transferred it to the appellant for Kshs 6,000,000. The Court of Appeal held this amounted to intermeddling contrary to sections 45(1), 55 and 71(1) of the Law of Succession Act. It also held the High Court was entitled to entertain the revocation application in respect of properties omitted from the original petition, and that the appellant was a necessary party, not a stranger. Even if the second respondent had consented and received half the purchase price, that collusion could not legitimise the transaction. The appeal was dismissed with costs to the respondents and the High Court ruling affirmed.

Key legal issues

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01

Whether the High Court could deal with estate properties omitted from the petition for letters of administration and join the appellant

Holding

The court was entitled to entertain the revocation application and to join the appellant, who was a necessary party, because the application sought to bring the omitted properties before the court and the appellant's and Daniel's acts caused the omission

Reasoning

The original petition mentioned only one of three properties. The revocation application sought to place every omitted property before the court so the court could assess whether the petition covered the entire estate. The appellant had to be included both because his and Daniel's acts resulted in the omission and for purposes of executing any orders. He was thus not a stranger but a necessary party.

p. 6
02

Whether the document of 22nd October 1996 constituted a will effecting inter vivos gifts

Holding

The document was an expression of wish, not a gift inter vivos; the property remained part of the estate and could only be dealt with through succession procedures under the Law of Succession Act

Reasoning

Both parties agreed the document was not a will. Its language ('will take', not 'has taken') showed it was an expression of wish to take effect after death, requiring implementation through letters of administration, whether intestate or with written will annexed. The deceased died still registered as owner of all three properties, so the subject property was subject of succession.

p. 6
03

Whether the sale and transfer of Kisii Town/Block 11/68 before obtaining and confirming a grant was lawful

Holding

The sale and transfer amounted to illegal intermeddling with the deceased's estate contrary to sections 45(1), 55 and 71(1) of the Law of Succession Act, and could not stand; the High Court ruling was affirmed

Reasoning

Daniel transferred the property to himself on 7th November 2007 and to the appellant on 30th November 2007, before any application for letters of administration. Section 45(1) prohibits intermeddling; section 55 bars distribution of capital assets before confirmation of the grant; section 71(1) requires confirmation after six months. None of these were complied with, so distribution was illegal.

p. 7
04

Whether the alleged consent of the second respondent, including receipt of half the purchase price, legitimised the transaction

Holding

Even if the second respondent had consented and received half the purchase price, that would amount only to collusion in an illegal activity and could not cure the illegality

Reasoning

The High Court found the purported signature evidencing consent was not the second respondent's. The Court added that even if he had consented and taken Kshs 3,000,000 of the Kshs 6,000,000 price, this would only mean he colluded in illegal activities; two wrongs cannot add to a right, and active consent cannot make the violating transaction legal.

p. 7

Legal principles established

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  • No person may take possession of, dispose of, or otherwise intermeddle with the free property of a deceased person except as expressly authorised by law or by a grant of representation
  • A grant of representation confers no power to distribute capital assets or divide property unless and until the grant has been confirmed
  • A testamentary expression of wish that a beneficiary 'will take' property operates as a wish to take effect on death through the Law of Succession Act, not as a gift inter vivos vesting the property in the beneficiary before death
  • A beneficiary's consent to, or collusion in, an unlawful intermeddling with a deceased's estate cannot validate the illegal transaction; a court seized of a revocation application may join affected parties and consider properties omitted from the original petition

Court orders

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  1. 1.The appeal stands dismissed with costs to the respondents

Authorities

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Legislation

  • Law of Succession ActSection 45(1)
  • Law of Succession ActSection 51
  • Law of Succession ActSection 52
  • Law of Succession ActSection 55
  • Law of Succession ActSection 71(1)
  • Law of Succession ActSection 93
On appeal from
High Court of Kenya at Kisii
Succession Cause No. 62 of 2009
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act over appeals from the High Court in succession matters (Law of Succession Act, Chapter 160, Laws of Kenya)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Peter Ombui Nyangoto v Elizabeth Matundura & another [2013] KECA 133 (KLR)", Case Analysis (2013). Civil Appeal No. 65 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/133/eng@2013-11-01

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