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Court of AppealPartially AllowedCivil Appeal Number 11 of 2018· [2019] KECA 377 (KLR)

Kadzo Charo v Alex Nzai Dzombo [2019] KECA 377 (KLR)

Court of Appeal
21 August 2019
HOHannah OkwenguSKS. Gatembu KairuAMA.K Murgor
5,178 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that selling a deceased person's land without letters of administration is invalid, and the buyer could not force the sale.

What this practically means

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Executive summary

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This first appeal arose from a judgment of the Environment and Land Court at Malindi (J.O. Olola, J.) declaring the respondent the legal/beneficial owner of 6 acres comprising Plot No. Tezo/Roka/797, registered in the name of Charo Kinda, deceased, and permanently restraining the appellant from interfering with his possession. The respondent had contracted in 1997 to purchase the 6 acres from the deceased's first wife for Kshs.250,000, on the understanding that she would obtain letters of administration and transfer the land. The appellant, the second widow, denied consenting to the sale and asserted that the first wife lacked capacity to sell estate property. The Court of Appeal (Okwengu, Gatembu Kairu & Murgor, JJ.A) framed two main issues: whether a retrial should be ordered for denial of a hearing, and whether the respondent had established specific performance. On the first, the Court held the trial Judge properly proceeded ex-parte where the hearing date had been fixed by the appellant's own advocates, and refused a retrial. On the second, the Court found that no grant of letters of administration had ever been obtained, and that the sale by the first widow without a grant constituted intermeddling under section 45 of the Law of Succession Act; a contract made by a person without such capacity was defective and could not sustain specific performance. The limitation and land control board consent questions were left academic. The Court allowed the appeal, set aside the judgment of 15th November 2017, dismissed the respondent's Originating Summons with costs to the appellant, and awarded the appellant the costs of the appeal.

Key legal issues

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01

Whether the appellant was denied a fair hearing warranting a retrial

Holding

The trial Judge properly proceeded ex-parte where the hearing date had been fixed at the instance of the appellant's advocates and no adjournment was sought; the retrial ground failed

Reasoning

The court reviewed the procedural history: a final adjournment had been granted on 6th October 2016; the hearing date of 20th April 2017 was taken by the appellant's advocates; no adjournment application was made. Although the trial Judge's observation that a final adjournment had been granted was not entirely correct, proceeding with the hearing was justified. The pending application to arrest judgment was a separate matter not before the Court.

p. 4
02

Whether the sale of the deceased's property by his widow without a grant amounted to intermeddling

Holding

The first wife had no capacity to sell estate property without letters of administration; the sale amounted to intermeddling under section 45 of the Law of Succession Act

Reasoning

The property remained registered in the deceased's name; no grant was ever obtained; the contract was between the respondent and the first wife only, and the appellant was not privy to it. Citing Trouistik Union International and Kaburu, the Court held that dealings with estate property without a grant are intermeddling and the claim to enforce the contract could not succeed.

p. 5
03

Whether specific performance could be decreed of the impugned contract

Holding

No; specific performance could not be founded on a defective contract tainted by illegality

Reasoning

The jurisdiction to grant specific performance presupposes a valid enforceable contract. Since the contract was entered into by a party without capacity, it was defective and could not be specifically enforced. This conclusion disposed of the appeal, making consideration of limitation and land control board consent academic.

p. 5
04

Limitation of Actions Act and land control board consent

Holding

Not determined; consideration of these issues was academic given the conclusion on capacity and intermeddling

Reasoning

The Court expressly declined to determine the limitation and land control board consent questions because its conclusion on intermeddling was sufficient to dispose of the appeal.

p. 5

Legal principles established

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  • A person without a grant of letters of administration has no legal capacity to sell or transact with the free property of a deceased person, and such dealings amount to intermeddling under section 45 of the Law of Succession Act
  • Specific performance cannot be granted on a contract that is defective or illegal; the jurisdiction rests on the existence of a valid enforceable contract

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the High Court (ELC) given on 15th November 2017 set aside
  3. 3.Respondent's Originating Summons dated 30th October 2014 dismissed with costs to the appellant
  4. 4.Appellant to have the costs of this appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rules 1 and 3
  • Limitation of Actions ActSection 19
  • Limitation of Actions ActSection 36
  • Land Control ActSection 6
  • Land Control ActSection 42(3)
  • Law of Succession ActSection 45
  • Evidence ActSection 120
  • Law Reform Act

Cases cited (12)

  • Selle vs. Associated Motor Boat Co Ltd
    [1968] EA 123
  • Macharia Mwangi Maina & 87 others vs. Davidson Mwangi Kagiri
    [2014] eKLR
  • Willy Kimutai Kitilit vs. Michael Kibet
    [2018] eKLR
  • Veronica Njoki Wakagoto (Deceased)
    [2013] eKLR
  • Trouistik Union International & another vs. Jane Mbeyu & another
    [1993] eKLR
  • Roman C Hintz vs. Mwangombe Mwakima
    [1988] 1 KAR 482
  • Otieno v Ougo
  • Benson Mutumamuriungi vs C.E.O Kenya Police Sacco & another
    [2016] eKLR
  • In re Estate of M'Ngarithi M'Miriti
    [2017] eKLR
  • Winnie Kinyua Kaburu vs Ali Juma Abdirahman & another
    [2018] eKLR
  • Bernard Nganga Ndirangu vs. Samuel Wainaina Tiras
    [2019] eKLR
  • Thrift Homes Ltd vs. Kenya Investments Ltd
    [2015] eKLR
On appeal from
Environment and Land Court at Malindi
ELC No. 200 of 2014 (OS)
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal jurisdiction (appeal as of right from the Environment and Land Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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, "Kadzo Charo v Alex Nzai Dzombo [2019] KECA 377 (KLR)", Case Analysis (2019). Civil Appeal Number 11 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/377/eng@2019-08-21

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