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Court of AppealDismissedCivil Appeal 107 of 2017· [2022] KECA 1285 (KLR)

Njeru & 7 others v Njeru

Court of Appeal
18 November 2022
WKW. KaranjaASMS Asike-MakhandiaHOHA Omondi
3,709 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that land bought from a beneficiary without a valid grant can be cancelled, even years later.

What this practically means

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Executive summary

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This appeal arose from a succession dispute over property registered in the name of Esther Wambui Njeru, who died intestate in 1975. The 1st appellant, her son, obtained and confirmed a grant in 2000 listing himself and one other as sole survivors, transmitted the property to himself absolutely, subdivided it and sold the parcels to the 2nd-8th appellants. The respondent, another son, successfully sought revocation of that grant and then two applications seeking his own appointment as administrator, confirmation of the grant, and cancellation of the titles issued to the purchasers. The High Court (Ndungu J) allowed both applications, cancelled the titles, and adopted a consent distributing the estate equally among the deceased's children. The Court of Appeal (Karanja, Asike-Makhandia and Omondi, JJA) dismissed the appeal in a single unanimous judgment. It held that the High Court, by dint of section 47 of the Law of Succession Act, had jurisdiction to cancel titles taken in contravention of the Act notwithstanding the ELC's land jurisdiction; that section 93 protection was unavailable to the purchasers because the estate had been wound up and the grant revoked when the transfers were effected, so the 1st appellant had no capacity or interest to transfer; that revocation applications are not subject to limitation; and that the consent on distribution was properly upheld under article 159 of the Constitution. The Miwani Sugar Mills authority was distinguished. Costs were awarded to the respondent.

Key legal issues

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01

Jurisdiction of the High Court in succession matters over land titles

Holding

The High Court retains jurisdiction in succession causes to cancel titles taken in contravention of the Law of Succession Act, notwithstanding the ELC's jurisdiction over land.

Reasoning

The court relied on section 47 of the Law of Succession Act, which confers all-embracing powers to entertain any application and make necessary orders to safeguard the estate. Although the ELC is a special court for land disputes, succession of the estate must ensue first; any subsequent title issues may then be taken to the ELC. The Miwani Sugar Mills case was distinguished as a commercial matter.

02

Protection of innocent purchasers under section 93 of the Law of Succession Act

Holding

Section 93 protection was unavailable because the estate had been wound up and the grant had been revoked at the time of the transfers; the disposal amounted to intermeddling.

Reasoning

Section 93 protects purchasers acquiring from a person to whom representation has been granted. Here the 1st appellant was a beneficiary without powers to deal with the assets of the deceased; the grant had been revoked between December 2014 and January 2015 when transfers were effected, so he had neither capacity nor any interest he could transfer.

p. 6
03

Fraudulent conduct of the 1st appellant

Holding

The 1st appellant's transfer of the suit property to himself while aware that other beneficiaries laid claim to the estate was fraudulent, and allowing the sale to stand would endorse that fraud.

Reasoning

The court relied on correspondence between the 1st appellant and the Ministry of Lands and proof of service of the application for revocation of grant to show he knew of competing claims. His direct representation to the succession court that the deceased was sole owner contradicted his claim to be true owner, which the trial court construed as an admission of the deceased's ownership.

p. 6
04

Limitation and competence of the applications

Holding

An application for revocation of grant may be brought at any time; limitation did not apply, and once jurisdiction was established the applications were competent.

Reasoning

The court endorsed the trial judge's finding that revocation of a grant may be sought at any time, particularly where fraud is alleged or a trustee converts property to own use. The 1st appellant acted with a clear intention to defeat other beneficiaries' interests, so section 20(2) of the Limitation of Actions Act did not bar the claim.

p. 3
05

Mode of distribution and the consent of beneficiaries

Holding

The consent dated September 9, 2015, distributing the properties equally among the deceased's children, was properly upheld under article 159 of the Constitution.

Reasoning

All parties except the 1st appellant did not object to the respondent being appointed administrator and agreed to the mode of distribution in the consent. The court, bound by article 159(2)(c) to promote alternative forms of dispute resolution, found the consent inclusive of all beneficiaries and an equitable mode of distribution, and adopted it in the spirit of speedy determination.

Legal principles established

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  • The High Court, by dint of section 47 of the Law of Succession Act, has jurisdiction to oversee the net estate of the deceased and to cancel titles taken by third parties in contravention of the Act.
  • Section 93 of the Law of Succession Act does not protect a purchaser where the estate had been wound up and the grant under which the transferor acted had been revoked.
  • A beneficiary without a confirmed grant has no capacity to transfer estate property, and a transferee can claim only that beneficiary's share after distribution.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
  2. 2.High Court ruling of 22nd February 2019 upheld

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(c)
  • Constitution of KenyaArticle 162(2)(b)
  • Law of Succession ActSection 47
  • Law of Succession ActSection 55
  • Law of Succession ActSection 82(b)
  • Law of Succession ActSection 93(1)
  • Limitation of Actions ActSection 20(2)
  • Land Registration ActSection 101
  • Environment and Land Court ActSection 4(1)

Cases cited (4)

  • Miwani Sugar Mills Ltd & Anor v Crossley Holdings Limited & 2 others
    [2020] eKLR

    Relied on by appellants on jurisdiction; distinguished as a commercial, not succession, matter.

  • Samuel Kamau Macharia & another v KCB Ltd & 2 others
    [2012] eKLR

    A court's jurisdiction flows from the Constitution or statute and cannot be arrogated beyond what is conferred by law.

  • Owners of Motor Vessel ‘Lilian S’ v Caltex Oil (K) Ltd
    [1989] KLR 1

    Celebrated authority on jurisdiction.

  • Floriz Piezzo & another v Giancarlo Falasconi
    (2014) eKLR

    Section 47 of the Law of Succession Act gives the High Court wide, all-embracing jurisdiction over estates.

On appeal from
High Court of Kenya at Nakuru
Succession Cause no. 38 of 2007
Jurisdiction invoked
Section 47 of the Law of Succession Act; second appeal under the Court of Appeal's appellate jurisdiction

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, "Njeru & 7 others v Njeru", Case Analysis (2022). Civil Appeal 107 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1285/eng@2022-11-18

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