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Court of AppealDismissedCivil Appeal No. 48 of 2018· [2019] KECA 151 (KLR)

Peter Kim Baker & 2 others v Sidi Katana Bongo & another [2019] KECA 151 (KLR)

Court of Appeal of Kenya
28 November 2019
3,956 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that land bought from people who had no legal right to sell a deceased person's property is worthless, even for buyers who paid good money.

What this practically means

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Executive summary

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The three appellants appealed against the judgment of Angote, J of the Environment and Land Court at Malindi, which had dismissed their claim to Kilifi/Mtondia/1113 and Kilifi/Mtondia/1114, allowed the respondents' counter-claim, cancelled their titles, and restored the parcels to the name of the deceased, Katana Bongo Masha. The appellants argued they were innocent purchasers for value without notice of fraud, that the vendors were registered owners, that drastic orders were made on parcel 1114 without its vendors being joined to the counter-claim, and that the respondents lacked locus standi for want of letters of administration. The Court of Appeal, comprising Karanja, Gatembu Kairu and Sichale, JJA, in a single judgment of the court, dismissed the appeal with costs. It held, as a first appeal, that it was enjoined to re-evaluate the evidence. The death certificate showed the deceased died on 23rd June 2009, so he could not have executed the 1st September 2009 sale agreement, the Land Control Board application of 6th August 2009, the consent of 3rd September 2009, or the transfer of 19th December 2009 for parcel 1113 - the purported sale was fraudulent. For parcel 1114, Kenga and Gaone Katana Bongo had no letters of administration and, contrary to section 45(1) of the Law of Succession Act, their sale of their father's property was void ab initio. The appellants could not be innocent purchasers, as the occupation of the land by Sidi and her children, and agreements to pay her to vacate, were red flags. The locus standi argument failed because the appellants themselves had sued the respondents as occupants, who needed no grant to defend their occupation.

Key legal issues

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01

Validity of a sale of a deceased person's land without a grant of representation

Holding

The sons' sale of Kilifi/Mtondia/1114 without letters of administration was void ab initio; the purported sale by the deceased of Kilifi/Mtondia/1113 was fraudulent because he had already died

Reasoning

The Court applied section 45(1) of the Law of Succession Act, which prohibits intermeddling with a deceased's free property without a grant. Kenga and Gaone had no letters of administration, so their transfer and subsequent sale were void. Separately, the death certificate showed the deceased died on 23rd June 2009, before the sale agreement, LCB application, consent and transfer for parcel 1113, so documents bearing his thumbprint were fraudulent.

p. 5
02

Innocent purchaser for value without notice

Holding

The appellants could not be innocent purchasers for value without notice because the circumstances of the transactions should have put them on inquiry, and their vendors had no valid title to pass

Reasoning

The trial judge found the plaintiffs knew or ought to have known that the defendants were living on parcel 1114 and that the land originally belonged to Mzee Masha, so they should have made further inquiries before contracting. On appeal, the Court affirmed: the vendors' titles derived from void transfers, and attempts to pay the occupying widow (Sidi) to vacate evidenced notice of competing claims. Title derived from a void ab initio transaction cannot be protected as innocent purchaser status.

p. 5
03

Locus standi of respondents without letters of administration

Holding

The respondents, having been sued as occupants of parcel 1114, did not need letters of administration to defend their occupation and sustain the counter-claim

Reasoning

The Court rejected the appellants' locus standi argument as disingenuous: it was the appellants who sued Sidi and Bahari on the basis that they occupied Kilifi/Mtondia/1114. The appellants could not then argue the respondents needed a grant to defend that occupation. The Court did not disturb the counter-claim on the basis of the Law of Succession Act section 82(a) argument, holding the respondents defended their own possessory rights rather than litigating on behalf of the estate.

p. 5
04

Standard of review on a first appeal

Holding

The Court of Appeal on a first appeal re-evaluates the evidence and draws its own conclusions, subject to due allowance for not having seen or heard the witnesses

Reasoning

Relying on Selle v Association of Motor Boat Co. of Kenya, the Court restated the settled principles: an appeal from the High Court is by way of retrial; the appellate court is not bound by the trial judge's findings of fact where he failed to take account of particular circumstances or probabilities, or where the impression of a witness's demeanour is inconsistent with the evidence generally. The Court would hesitate to reverse findings of fact except on those grounds or where the finding is based on no evidence or a wrong principle.

p. 4

Legal principles established

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  • No person may take possession of, dispose of, or otherwise intermeddle with the free property of a deceased person without a grant of representation; any such sale or transfer is void ab initio
  • On a first appeal, the Court of Appeal is enjoined to re-evaluate the evidence and reach its own conclusions, while making due allowance for not having seen or heard the witnesses
  • A person sued in respect of occupation of land does not need letters of administration to defend their right of occupation

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The appellants to pay the costs of the appeal to the respondents (with costs to the respondents)

Authorities

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Legislation

  • Law of Succession Act (Cap 160)Section 82(a)
  • Law of Succession Act (Cap 160)Section 45(1)

Cases cited (4)

  • Sophie Wanjiku John vs. Jane Mwihaki Kimani [2013] eKLR
    [2013] eKLR
  • Rajesh Pranjivan Chudasam vs. Sailesh Pranjivan Chudasama [2014] eKLR
    [2014] eKLR
  • Selle vs. Association of Motor Boat Co. of Kenya & others [1968] EA 123
    [1968] EA 123
  • Abdul Hameed Saif – vs – Ali Mohamed Sholan (1955) 22 EACA 270
    (1955) 22 EACA 270
On appeal from
Environment and Land Court of Kenya at Malindi
E&LC No. 82 of 2013
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Constitution of Kenya, Article 164)

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, "Peter Kim Baker & 2 others v Sidi Katana Bongo & another [2019] KECA 151 (KLR)", Case Analysis (2019). Civil Appeal No. 48 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/151/eng@2019-11-28

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