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Court of AppealPartially AllowedCivil Appeal No. 234 of 2011· [2015] KECA 237 (KLR)

Ramadhani Musumba Chemieti v Jamin Wasike Chemieti [2015] KECA 237 (KLR)

Court of Appeal
29 October 2015
2,617 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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This appeal arose from the judgment of Muchemi, J. of the High Court at Bungoma in H.C.C. Suit No. 91 of 2005, an originating summons concerning the estate of Sila Chemiati, who died in 1980. The appellant, a surviving spouse, sold one estate property in 1983 without a grant; the respondent, a son who had obtained a grant later revoked, sold the other, Bungoma Township/228, in 1986. A confirmation-of-grant application stalled after Sergon, J. directed that the question of the extent of the estate be determined in a separate suit, leading to the originating summons. The High Court declared both properties had been illegally and fraudulently disposed of but held they could not be taken back into the estate, awarding the appellant instead compensation from the sale proceeds of plot 228. The appellant appealed, contending that the fraudulently transferred property was traceable into the hands of third parties and that the findings prejudiced her pending suit against the purchasers. The Court of Appeal, citing its earlier decisions, accepted that estate property transferred by an administrator may in certain circumstances be traced, especially where the grant was fraudulently obtained or the transferor had no interest to transfer. However, because plot 228 was the subject of pending litigation against third-party purchasers whose rights would be affected, the Court held those parties were entitled to be heard before any tracing determination. It allowed the appeal, set aside the High Court judgment entirely, dismissed the originating summons, and directed that the confirmation application be heard together with the pending suit against the third parties before a judge other than Muchemi, J. or Sergon, J., with each party bearing its own costs.

Key legal issues

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01

Whether fraudulently transferred estate property can be traced back into the deceased's estate

Holding

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.

Reasoning

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.

p. 5
02

Whether the High Court could determine the rights of third-party purchasers without hearing them

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Appeal allowed
  2. 2.Judgment and decree of the High Court given on 13th July 2011 set aside in its entirety
  3. 3.Substituted order dismissing the originating summons dated 3rd November 2005
  4. 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. 5.All parties affected or who may be affected by the decision of the court to be given an opportunity to be heard
  6. 6.Each party to bear its own costs of the originating summons and of the appeal

Authorities

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Legislation

  • Law of Succession Act (Cap 60)section 66
  • Law of Succession Act (Cap 60)section 93(1)
  • Registered Land Actsection 143
  • Registration of Titles Actsection 24
  • Civil Procedure RulesOrder XXXVI rule 1

Cases cited (4)

  • Musa Nyaribari Gekone and others vs. Peter Miyienda and Another
    Civil Appeal No. 2 of 2014
  • Adrian Nyamu Kiugu vs Elizabeth Karimi Kiugu and Anor
    [2014] eKLR
  • Jecinta Wanja Kamau vs. Rosemary Wanjiru Wanyoike and Another
    [2013] eKLR
  • Jane Gachoki Gathecha vs. Priscilla Nyawira Gitungu and another
    [2008] eKLR
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "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.