Musa Nyaribari Gekone & 2 others v Peter Miyienda & another [2015] KECA 573 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that property buyers from a deceased person can challenge hidden succession grants and reclaim their land.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of a purchaser to apply for revocation of a grant under section 76
A person claiming to have purchased an asset of the estate is an 'interested party' with standing under section 76; sections 66 and 39 on preference and devolution do not limit that expression.
The court construed 'any interested party' in its plain and ordinary meaning as accommodating any person with a right or expectancy in the estate. Sections 66 and 39 govern order of preference for grants and devolution of the intestate estate respectively, and have no bearing on who may be an interested party for revocation purposes. The 1st respondent, having purchased the property from the deceased and remained in possession, had standing.
Whether the grant was obtained by concealment of material facts
Yes; the 1st appellant should have disclosed the 1st respondent's interest, at the very least as a creditor of the estate.
The evidence showed a sale agreement of 21st December 1997 between the deceased and the 1st respondent, witnessed by the deceased's mother; the 1st respondent took possession and paid the balance of the purchase price to the deceased's mother after the deceased's death. The petition and confirmation proceedings concealed this interest and falsely alleged that all persons beneficially entitled had been ascertained, justifying revocation under section 76(b).
Whether the Land Control Act barred the 1st respondent's claim for want of consent
No; the property was within the municipality and therefore excluded from the definition of agricultural land under the Act.
The object of the Land Control Act is to control dealings in agricultural land. Under section 2 of the Act, land within a municipality or township is excluded from the definition of agricultural land. Business permits issued by the Municipal Council of Kisii for the 1st respondent's timber business on the property showed it was within the municipality, so no consent was required and the High Court's conclusion could not be faulted.
Whether the 1st respondent's summons was an 'action to recover land' barred by limitation
No; summons for revocation of grant and rectification of register are not an action to recover land under section 7 of the Limitation of Actions Act.
The court noted, first, that this complaint was not among the grounds in the memorandum of appeal and was never determined below. On the merits, it was not persuaded that revocation and rectification proceedings under the succession regime amount to an action to recover land for purposes of the 12-year limitation period in section 7.
Protection of the 3rd appellant's title under section 93 of the Law of Succession Act
Section 93 did not protect the 3rd appellant because the initial transfer to the personal representative was contrary to the confirmed grant and the grant was obtained by fraud and concealment.
Following prior decisions, the court held that section 93 protects only valid dealings by a personal representative. The transfer by the 1st appellant to himself and others was contrary to the confirmed grant which directed him to hold the property in trust for the family, rendering the initial transfer invalid and the subsequent transfer to the 3rd appellant equally invalid. Fraudulent concealment in obtaining the grant further defeated reliance on section 93.
Legal principles established
#- The expression 'any interested party' in section 76 of the Law of Succession Act is wide enough to include a purchaser of an asset of the estate, who has standing to apply for revocation of a grant.
- A grant obtained by concealment from the court of a purchaser's or creditor's interest in an estate asset is liable to revocation under section 76(b) of the Law of Succession Act.
- Section 93 of the Law of Succession Act does not protect a transferee where the transfer was made in contravention of the confirmed grant or pursuant to a fraudulently obtained grant.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the 1st respondent
- On appeal from
- High Court of Kenya at Kisii
- HCC Succession Cause No. 35 of 2012
- Jurisdiction invoked
- First appeal to the Court of Appeal against a ruling of the High Court in a succession cause (Law of Succession Act regime); no specific constitutional or appellate provision is cited in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musa Nyaribari Gekone & 2 others v Peter Miyienda & another [2015] KECA 573 (KLR)", Case Analysis (2015). Civil Appeal No. 2 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/573/eng@2015-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.