Ramadhani Musumba Chemieti v Jamin Wasike Chemieti [2015] KECA 237 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed fraudulently sold estate property can be traced back, but ruled affected third parties must first be heard before such a decision.
What this practically means
#Executive summary
#Key legal issues
#Whether fraudulently transferred estate property can be traced back into the deceased's estate
Yes, in certain circumstances. Where the administrator was not entitled to the grant or obtained it fraudulently, or where the transaction is void ab initio as with a thief's transfer of stolen property, section 93(1) protection does not apply and the property is traceable.
The Court relied on its own prior decisions, including Gekone and Kamau, and on Gathecha where it held that section 93(1) of the Law of Succession Act only protects a valid transfer of an interest by a person with title to transfer. A person without any interest in the property, like a thief, transfers nothing, the transaction is void ab initio and the property remains traceable into the hands of third parties.
Whether the High Court could determine the rights of third-party purchasers without hearing them
No. The determination that the properties were illegally and fraudulently disposed of had ramifications beyond the two parties, including the third parties in the pending Suit No. 96 of 1999, so the rules of natural justice required that affected persons be heard.
The Court noted that Bungoma Township/228 was already the subject of litigation between the appellant and the respondent and two third parties seeking nullification of its transfer. A declaration that the plot was fraudulently disposed of, and any consequential decision on tracing, would necessarily affect those third parties' rights, so they had to be joined in the hearing before the question could be decided.
Legal principles established
#- Estate property transferred by an administrator may in certain circumstances be traced, particularly where the transferor was not entitled to the grant or obtained it fraudulently
- Where a determination on tracing of estate property has ramifications beyond the parties before the court, persons affected must be accorded an opportunity to be heard before such a determination is made
Court orders
#- 1.Appeal allowed
- 2.Judgment and decree of the High Court given on 13th July 2011 set aside in its entirety
- 3.Substituted order dismissing the originating summons dated 3rd November 2005
- 4.Application for confirmation of grant pending before the High Court in Bungoma to be fixed for hearing and heard together with Bungoma High Court Civil Suit No. 96 of 1999 before a judge other than Muchemi, J. or Sergon, J.
- 5.All parties affected or who may be affected by the decision of the court to be given an opportunity to be heard
- 6.Each party to bear its own costs of the originating summons and of the appeal
- On appeal from
- High Court of Kenya at Bungoma
- H.C.C. Suit No. 91 of 2005
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court under the Court of Appeal's appellate jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- In re Estate of Samson Wekesa (Deceased) [2021] KEELC 2253 (KLR)[2021] KEELC 2253 (KLR)28 Jul 2021
- In re Estate of Samson Wekesa (Deceased) [2021] KEELC 2253 (KLR)[2021] KEELC 2253 (KLR)28 Jul 2021distinguished
Cite this brief
#Cite this brief
Caselaw, "Ramadhani Musumba Chemieti v Jamin Wasike Chemieti [2015] KECA 237 (KLR)", Case Analysis (2015). Civil Appeal No. 234 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/237/eng@2015-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.