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Court of AppealPartially AllowedCivil Appeal No. 91 of 2016· [2017] KECA 10 (KLR)

Wevarsity Sacco Society Limited v Moses Musa Lumiti Abura & another [2017] KECA 10 (KLR)

Court of Appeal
28 September 2017
2,578 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal protected a Sacco that bought land in good faith, ruling that revoking a succession grant does not automatically undo property sales made under it.

What this practically means

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Executive summary

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This is a single judgment of a three-judge bench of the Court of Appeal (Musinga, Gatembu Kairu and Murgor, JJ.A.) allowing the appellant Sacco's appeal against the judgment of Sitati, J. of the High Court at Kakamega in Succession Cause No. 990 of 2011, which had revoked a grant of letters of administration intestate issued to the 1st respondent and declared null and void all transactions made pursuant to the revoked grant, including the sale of Isukha/Shirere/6130 to the appellant. The Court framed two issues: whether the grant was secretly or fraudulently obtained, and whether the appellant's title could be annulled under section 93 of the Law of Succession Act. On the first, the Court held the 2nd respondent had not discharged her burden of proving fraud, her denial being contradicted by affidavits she had signed before Commissioners for Oaths, one of whom was her own advocate who declined to confirm or deny commissioning the documents. On the second, the Court held that section 93(1) preserved transfers made by a person to whom representation had been granted notwithstanding subsequent revocation, that the judge had failed to consider that provision at all, and that the appellant, a due-diligence purchaser without any fraud, had acquired valid, unassailable title. The Court found the judge's finding that the purchase pre-dated completion of succession to be factually inaccurate. The appeal was allowed, the High Court judgment set aside, and the respondents ordered to bear the costs of the appeal. The decision binds subordinate courts and the High Court on the protective effect of section 93(1) for bona fide purchasers and on the burden of proof in revocation applications.

Key legal issues

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01

Whether the grant was fraudulently or secretly obtained so as to justify revocation under section 76 of the Law of Succession Act

Holding

No; the 2nd respondent failed to prove fraud or concealment. Her signatures appeared on affidavits witnessed by Commissioners for Oaths, and the advocate who commissioned the confirmation affidavit did not deny doing so when questioned.

Reasoning

The 2nd respondent's assertion that the grant was obtained secretly was contradicted by two affidavits on record: Form 38 signed before Asichiri George Aburili, advocate, and the affidavit of consent to distribution signed before Nyikuli O. J., advocate - the very advocate who later acted for her. He was evasive before the Court and should have shed light but chose not to; the Court also questioned the ethics of his representation.

p. 3
02

Whether the appellant's title survived revocation of the grant under section 93(1) of the Law of Succession Act

Holding

Yes. The appellant purchased from a registered proprietor after confirmation of the grant, without fraud, and its transfer was valid notwithstanding any revocation; the High Court erred by failing to consider section 93(1) at all.

Reasoning

At the time of the sale agreement the original parcel had been subdivided per the confirmed grant and the vendor was registered as absolute proprietor. The appellant conducted searches at the Lands and court registries, obtained Land Control Board consent, and there was no iota of fraud. The judge's finding that the purchase pre-dated completion of succession was factually inaccurate.

p. 4
03

The reliance on Musa Nyaribari Gekone v Peter Miyienda to invalidate a transfer flowing from a fraudulent grant

Holding

The authority was distinguishable on the facts because fraud on the grant was not proved; the court did not follow it to defeat the appellant's title.

Reasoning

The 2nd respondent invoked the decision for the proposition that a fraudulent grant and resulting transfer may be invalidated notwithstanding section 93. The Court, having found that fraud was not established, found the appellant's title valid and unassailable, thereby declining to apply that principle to these facts.

p. 4

Legal principles established

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  • Section 93(1) of the Law of Succession Act preserves a transfer of property made to a purchaser by a person to whom representation has been granted notwithstanding subsequent revocation or variation of the grant, and a judge revoking a grant must address section 93(1) before nullifying transfers.
  • A party seeking revocation of a grant bears the burden of proving fraud, and a bare denial of knowledge or signature, contradicted by affidavits on record, does not discharge that burden.
  • A bona fide purchaser who conducts due diligence searches at the Lands Registry and court registry before purchase acquires a valid and unassailable title.

Court orders

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  1. 1.Appeal allowed
  2. 2.High Court judgment dated 21st September 2016 set aside
  3. 3.Respondents to bear the costs of the appeal

Authorities

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Legislation

  • Law of Succession Actsection 93(1)
  • Law of Succession Actsection 93(2)
  • Law of Succession Actsection 76
  • Law of Succession Actsection 51
  • Probate and Administration Rulesrule 26
  • Probate and Administration Rulesrule 40(8)

Cases cited (1)

  • Musa Nyaribari Gekone & 2 Others v Peter Miyienda & Another
    [2015] eKLR
On appeal from
High Court of Kenya at Kakamega
Succession Cause No. 990 of 2011
Jurisdiction invoked
First appellate jurisdiction under the Law of Succession Act (appeal from the High Court exercising probate jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wevarsity Sacco Society Limited v Moses Musa Lumiti Abura & another [2017] KECA 10 (KLR)", Case Analysis (2017). Civil Appeal No. 91 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/10/eng@2017-09-28

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