Edward Mburu Kariuki v Samuel Karisa Charo Nguma & 3 others [2021] KECA 922 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that property bought under a fraudulently obtained probate grant gives the buyer no valid title — their remedy is against the seller, not the estate.
What this practically means
#Executive summary
#Key legal issues
#Interference with discretionary decisions on appeal
The appeal challenged the trial court's exercise of discretion; the Court adopted the settled principles from United India Insurance Company Limited vs. East African Underwriters Kenya Ltd and found no basis to interfere.
The Court held that interference is warranted only where the judge misdirected herself in law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or where the discretionary decision is plainly wrong. It found the judge had properly concluded the proceedings were defective in substance because the grant was obtained without evidence of the deceased's death and without the required presumption-of-death order.
Validity of a grant obtained without evidence of death
The grant was null and void because it was obtained through fraud and material non-disclosure, the deceased having disappeared in 1997 with no death certificate and no presumption-of-death order.
The 4th respondent was required under section 118A of the Evidence Act and Rules 7(1)(b), (2), 10 and 26 of the Probate and Administration Rules to prove death or obtain a presumption-of-death order first. He did not, so the grant could not have issued had there been full and true disclosure. Title obtained under such a grant cannot pass to a purchaser; the appellant's remedy lies in a claim against the 4th respondent.
Right to be heard of a person adversely affected
The authorities on natural justice relied on by the appellant state the law correctly, but on the peculiar facts the appeal could not succeed because the grant was invalid on its face.
The Court accepted that a person likely to be adversely affected must be heard, but held that neither the appellant nor the 4th respondent disputed that the grant was obtained without evidence of death. That defect alone disentitled the 4th respondent to the grant, so the violation of natural justice did not avail the appellant, who retains a remedy against the seller.
Legal principles established
#- An appellate court interferes with the exercise of judicial discretion only on established grounds: misdirection in law, misapprehension of facts, taking into account irrelevant considerations, failing to take into account relevant considerations, or where the decision is plainly wrong
- A grant of letters of administration obtained without evidence of the death of the deceased, through fraud and material non-disclosure, is null and void and confers no title capable of being passed to a purchaser
Court orders
#- 1.Appeal dismissed
- 2.Each party to bear own costs
- On appeal from
- High Court at Mombasa
- Mombasa Succession Cause No. 361 of 2011
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Act against a ruling of the High Court in succession proceedings
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edward Mburu Kariuki v Samuel Karisa Charo Nguma & 3 others [2021] KECA 922 (KLR)", Case Analysis (2021). Civil Appeal No. 161 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/922/eng@2021-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.