Benson Manani Mahinye v Waiganagana A. Kendi [2016] KECA 491 (KLR)

Court of Appeal of Kenya

2 June 2016

DMD. K. Musinga SKS. Gatembu Kairu AMA. K. Murgor

3,093 words in judgment

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The bottom line

Kenya's Court of Appeal confirmed that land bought from someone who fraudulently obtained a succession grant loses protection, and the buyer's title was cancelled.

What this practically means

Executive summary

The Court of Appeal at Kisumu (Musinga, Gatembu Kairu and Murgor, JJ.A) dismissed this appeal against a ruling of the High Court at Kakamega (Mrima, J) cancelling the appellant's title to Kakamega/Iguhu/931, a property forming part of the intestate estate of Rispa Ngaira Waiganagana. Julius, the deceased's son, had obtained letters of administration and a confirmed grant by falsely presenting himself as the sole surviving child, then sold the property to the appellant under agreements of 2005 and 2009. The central issue was whether the cancellation of the appellant's title offended section 93(1) of the Law of Succession Act, which validates transfers by persons to whom representation has been granted notwithstanding subsequent revocation of the grant. Following its own prior decisions and the High Court's decision in Adrian Nyamu Kiugu, the Court held that section 93(1) affords no protection where the grant was obtained fraudulently, and that the appellant, who knew the family well and dealt with Julius before confirmation of the grant, was not an innocent purchaser for value without notice. The Court also held that the High Court correctly treated objections to the competency of the 2014 application - the death and non-substitution of Julius, and the pendency of an earlier revocation application - as an afterthought, noting the consent order on the mode of hearing and the substitution of administrators effected by the court. The appeal was dismissed with costs to the respondent.

Key legal issues

Whether section 93(1) of the Law of Succession Act validates a transfer by an administrator who obtained the grant by fraud

Holding

It does not. Protection under section 93(1) applies only where the representative was entitled to the grant and did not obtain it fraudulently; a fraudulent transfer is not protected and the title of a purchaser who is not innocent falls with it

Reasoning

The court reviewed its own and the High Court's precedents holding that section 93(1) protects only transfers by persons entitled to, and not fraudulently holding, representation. Julius knowingly misrepresented that he was the sole survivor and concealed the respondent and other heirs, so the grant was procured by fraud. The appellant, a neighbour who dealt with Julius before the grant was even confirmed, could not claim innocence. The Judge's interpretation and application of section 93(1) was therefore correct and the Court of Appeal would not interfere.

p. 5

Whether the hearing of the 9th July 2014 application without substitution of the deceased administrator, and before the earlier revocation application, vitiated the ruling

Holding

No. The point was an afterthought, not raised when the consent order on the mode of hearing was recorded; the earlier application was not a bar, and the court substituted the administrators in its orders

Reasoning

Counsel for the parties had recorded a consent on how the 2014 application would be disposed of, without raising the competency complaint. The subsistence of the 2008 revocation application did not prevent the court from entertaining the urgent 2014 application when the property was at risk of disposal. Further, the High Court did in fact substitute the deceased administrator with other heirs, curing the objection. The complaint therefore failed.

p. 6

Legal principles established

Section 93(1) of the Law of Succession Act does not protect a transfer made by a person who obtained the grant of representation fraudulently; a purchaser from such a fraudster acquires no protected title

Court orders

1.Appeal dismissed with costs to the respondent

Authorities

Legislation

Law of Succession Actsection 93(1)
Registered Land Act (Cap 60)section 143

Cases cited (4)

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
Musa Nyaribari Gekone and two others Vs. Peter Miyienda and another
Kisumu Civil Appeal No. 2 of 2014

On appeal from: High Court of Kenya at Kakamega; H.C. Succession Cause No. 18 of 2005
Jurisdiction invoked: First appellate appeal to the Court of Appeal from the High Court (succession cause), Law of Succession Act regime

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Benson Manani Mahinye v Waiganagana A. Kendi [2016] KECA 491 (KLR)", Case Analysis (2016). Civil Appeal No. 53 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/491/eng@2016-06-02

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