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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal 10 of 2018· [2022] KECA 1175 (KLR)

Irungu & 4 others v Mwanzia & 6 others

Court of Appeal
21 October 2022
2,351 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Court of Appeal confirmed that selling a deceased person's land before a grant of administration is confirmed is void, so the buyers lost their claim.

What this practically means

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Executive summary

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The appellants, purchasers from one Dominic Musembi, claimed ownership of an unregistered plot in Kamulu, Nairobi, originally bought by Harun Katiku (the Deceased) from Drumvale Farmers' Cooperative Society Ltd. The Deceased sold the property to Mbukoni Holdings Ltd in February 1997 during his lifetime; Mbukoni subdivided it and sold the plots to the respondents, who took possession and developed them. After the Deceased's death in November 1997, his widow and son purported to sell the property to Musembi in August 1998, before their grant of letters of administration was confirmed on 1st September 2000. The appellants later obtained a certificate of lease over the property. The High Court (Mbugua, J.) dismissed the appellants' suit and allowed the respondents' counterclaim, finding the appellants' acquisition tainted with illegalities. On appeal, the Court of Appeal framed four issues and resolved each against the appellants: the sale to Mbukoni and subsequent transactions were lawful and occurred during the Deceased's lifetime; the widow and son had no power to dispose of estate property before confirmation of the grant, rendering the sale to Musembi void; consequently the respondents were the lawful owners, and cancellation of the appellants' certificate of lease was the only option. The appeal was dismissed, the High Court judgment upheld, and costs awarded to the respondents.

Key legal issues

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01

Whether the deceased sold the suit property to Mbukoni before his death

Holding

Yes; the sale, subdivision and transfer to the respondents all occurred during the deceased's lifetime and were lawful.

Reasoning

The court examined the record and found the three transactions - Drumvale to deceased, deceased to Mbukoni, and Mbukoni to respondents - were conducted during the deceased's lifetime, with the sale agreement signed by his brother with his express knowledge and consent. Nothing suggested the transactions were unlawful or irregular.

02

Whether the widow and son could transfer any interest in the suit property in August 1998 before confirmation of the grant

Holding

No; before confirmation of the grant on 1st September 2000 they had no power to deal in or dispose of any part of the estate.

Reasoning

Sections 45(1), 55(1) and 82(b)(ii) of the Law of Succession Act prohibit intermeddling with, distribution of, or sale of immovable property of a deceased's estate before confirmation of the grant. The purported sale to Musembi in August 1998 was therefore void, and the appellants derived no title from it.

03

Who, as between the appellants and the respondents, are the rightful owners of the suit property

Holding

The respondents, who purchased from Mbukoni and took possession; the appellants' certificate of lease was unlawfully obtained and its cancellation was the only option.

Reasoning

Since neither the deceased nor his widow and son conveyed any enforceable interest to the appellants, and the respondents were already in possession having lawfully purchased from Mbukoni, the respondents are the lawful owners. The certificate of lease obtained by the appellants raised more questions than answers and could not stand.

p. 5

Legal principles established

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  • On a first appeal, the Court of Appeal must reconsider and re-evaluate the evidence and reach its own conclusions.
  • No person may take possession of, dispose of, or otherwise intermeddle with the free property of a deceased person except as authorised by law or a grant of representation.
  • No grant of representation confers power to distribute capital assets of a net estate before the grant is confirmed.
  • Personal representatives may not sell immovable property of the estate before confirmation of the grant.
  • A transaction intermeddling with a deceased's property before confirmation of a grant remains illegal notwithstanding the consent of participants.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The judgment of the High Court (L. N. Mbugua, J.) delivered on 3rd November 2017 is upheld
  3. 3.The costs of the appeal shall be borne by the appellants

Authorities

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Legislation

  • Law of Succession Act (Cap. 160)Section 45(1)
  • Law of Succession Act (Cap. 160)Section 55(1)
  • Law of Succession Act (Cap. 160)Section 82(b)(ii)
  • Law of Succession Act (Cap. 160)Section 71

Cases cited (3)

  • Arthi Highway Developers Limited v West End Butchery Limited and 6 others
    [2015] eKLR

    Adoption of the first-appeal approach of re-assessing evidence and reaching own conclusions

  • Selle v Associated Motor Boat Co.
    [1968] EA p.123

    An appeal from a trial by the High Court is by way of retrial; the Court must reconsider the evidence and draw its own conclusions

  • Peter Ombui Nyangoto v Elizabeth Matundura & Another
    [2013] eKLR

    Transfer of a deceased's property before a grant is issued and confirmed amounts to intermeddling and remains illegal

On appeal from
Environment and Land Court at Nairobi
E.L.C Cause No. 1890 of 2012
Jurisdiction invoked
First appeal to the Court of Appeal under the Constitution and applicable appellate statute (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, "Irungu & 4 others v Mwanzia & 6 others", Case Analysis (2022). Civil Appeal 10 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1175/eng@2022-10-21

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