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Court of AppealDismissedCivil Appeal 55 of 2018· [2022] KECA 1056 (KLR)

Mbeche (Suing on her behalf and as representative of the Estate of Araka Rachier Mbeche) v Kihumba

Court of Appeal
7 October 2022
DMD K MusingaHOHannah OkwenguASMS Asike-Makhandia
3,046 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This was a first appeal against the judgment of Mulwa, J. of the High Court at Nakuru delivered on 12th October 2017 in two consolidated suits (Nakuru HCCC No. 209 of 2003 and Nakuru HCCC No. 61 of 2001) concerning Title No. Nakuru/Municipality Block 15/169, owned by the late Araka Rachier Mbeche. The appellant, the deceased's widow and administrator, sought vacant possession and removal of the respondent's caution; the respondent counter-claimed for a declaration of ownership and a perpetual injunction, asserting he had purchased the property from the deceased under an agreement dated 24th November 1986, paid the full purchase price of Kshs. 400,000, taken over the HFCK mortgage, and been placed in possession. The trial court found the respondent to be a bona fide purchaser for value, held the property did not form part of the estate, and entered judgment on the counterclaim. The appellant raised 11 grounds, contending the agreement was executory, the consideration unpaid, and that the Judge erred in invoking estoppel and unjust enrichment. The Court of Appeal, re-evaluating the evidence as it must on a first appeal, found the respondent was a purchaser, not a tenant; that the full consideration had been paid to the deceased; and that the outstanding HFCK loan, settled after the deceased's death by the Mortgage Protection Insurance, did not vitiate the agreement. The estate was bound by the deceased's contract and could not resile absent fraud, coercion or undue influence. The appeal was dismissed with no order as to costs, each party bearing their own costs.

Key legal issues

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01

Whether the respondent was a purchaser or a tenant of the suit property

Holding

The respondent was a bona fide purchaser for value under an agreement of sale executed by the deceased, who put him in possession; he was not a tenant.

Reasoning

The agreement dated 24th November 1986 was a conveyance transaction witnessed by an advocate; the deceased signed a transfer of lease and handed over possession after Shelter Afrique left in January 1987. The appellant was not party to the agreement and never demanded rent, and omitted the property from the estate assets in the succession cause, consistent with the interest having been assigned.

p. 5
02

Whether non-payment of the HFCK mortgage balance vitiated the sale agreement

Holding

Non-payment of the loan to HFCK did not vitiate the agreement; as between the respondent and the deceased, the obligations under the sale agreement had been discharged.

Reasoning

The full purchase price of Kshs. 400,000 was paid to the deceased, part of which was to offset the HFCK loan. The respondent continued monthly payments in the deceased's name, and the Mortgage Protection Insurance settled the outstanding loan on death only because the property remained in the deceased's name on HFCK records, though the deceased had in reality transferred his interest.

p. 5
03

Whether the appellant, as administrator, could resile from the deceased's contract

Holding

The appellant and the estate were bound by the sale agreement and could not resile from it; the trial court correctly entered judgment on the counterclaim.

Reasoning

In the absence of fraud, coercion or undue influence, the administrator must honour the agreement and pass title. The appellant knowingly omitted the property from the succession assets, and the learned Judge rightly found the respondent had proved his case and granted the prayers sought in the counterclaim.

p. 5

Legal principles established

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  • On a first appeal, the Court of Appeal must analyse and re-evaluate the evidence on record and arrive at its own independent conclusion.
  • An administrator of a deceased's estate is bound by a sale agreement duly entered into by the deceased before death, and cannot resile from it in the absence of fraud, coercion or undue influence.
  • Property sold by a registered owner before death does not form part of the deceased's estate.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Each party to meet their own costs

Authorities

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Cases cited (2)

  • Peters vs Sunday Post Limited
    [1958] EA 424

    Cited by the respondent to urge that the trial Judge, having seen and assessed the witnesses' demeanour, properly adjudicated the matter.

  • Kenya Ports Authority v Kuston (Kenya) Limited
    [2009] 2EA 212

    Authority for the duty of a first appellate court to re-evaluate the evidence and reach its own conclusion.

On appeal from
High Court of Kenya at Nakuru
Nakuru HCCC No. 209 of 2003
Jurisdiction invoked
First appeal to the Court of Appeal under its appellate jurisdiction (Constitution/Act not expressly cited in the judgment)

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, "Mbeche (Suing on her behalf and as representative of the Estate of Araka Rachier Mbeche) v Kihumba", Case Analysis (2022). Civil Appeal 55 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1056/eng@2022-10-07

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