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Court of AppealPartially Allowed· [2024] KECA 729 (KLR)

Angote (Suing as Personal Representative of the Estate of Lucas Adam Onyango) v Mweu & another (Civil Appeal E093 of 2021) [2024] KECA 729 (KLR)

Court of Appeal of Kenya
21 June 2024
4,740 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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The Court of Appeal ruled that neither side proved ownership of the Mombasa plot, because property of a deceased person cannot legally be sold without a grant of representation.

What this practically means

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Executive summary

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This first appeal concerned competing claims to Plot No. 1287 Mikindani with House No. 210, allocated by the former Municipal Council of Mombasa to the late Leonard Obado. The appellant, as personal representative of the late Lucas Adam, claimed the property through a 1994 sale agreement and power of attorney, while the 1st respondent claimed under a 1998 sale agreement with the deceased's alleged widows. The Environment and Land Court dismissed the appellant's claim for want of proof and allowed the 1st respondent's counterclaim. The Court of Appeal, re-evaluating the evidence, agreed that the appellant failed to prove the purchase: the sale agreement was made on behalf of a club whose existence was not proved, no documents or receipts evidenced payment, and the power of attorney was automatically revoked upon the donor's death. However, the Court held that upon the late Obado's death his estate vested in the Office of the Public Trustee, so Gloria Obado and Margaret Awour had no capacity to sell or transfer the property; their sale agreement and transfer were nullities for want of capacity, rendering the 1st respondent's counterclaim without merit. The Court partly allowed the appeal, setting aside the judgment below only to the extent of dismissing the 1st respondent's counterclaim, and ordered each party to bear their own costs. Both parties were left without established proprietary rights over the suit property.

Key legal issues

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01

Whether the appellant's late husband lawfully purchased and acquired the suit property from the late Obado

Holding

The appeal on this ground fails; the appellant did not prove the purchase or payment of the purchase price, and the power of attorney was revoked on the donor's death.

Reasoning

The sale agreement was entered into by the husband as Chairperson of Mikindani Friends Club, yet no evidence showed the club's existence, its membership, or how the property passed from the club to him. No transfer or ownership documents were produced, no receipts or acknowledgments evidenced payment of the purchase price, and the power of attorney extinguished automatically upon the donor's death. The trial Judge's dismissal of the claim for want of proof was therefore correct.

p. 6
02

Whether Gloria Obado and Margaret Awour had capacity to sell the suit property to the 1st respondent

Holding

They had no capacity; upon the late Obado's demise the estate vested in the Office of the Public Trustee, and dealings with the property without the Public Trustee were a nullity.

Reasoning

Letters on the record showed the estate had come under the Public Trustee. Section 45(1) of the Law of Succession Act prohibits intermeddling with a deceased's free property except under a grant or other lawful authority, and section 6 of the Public Trustee Act vests inquiry and administration in the Public Trustee. The sale agreement and transfer signed by the two women in disregard of the Public Trustee were unlawful and void ab initio for want of capacity.

p. 8
03

Whether the 1st respondent acquired good title to the suit property

Holding

The 1st respondent did not acquire good title because her sellers lacked capacity; the learned Judge misdirected himself in upholding her counterclaim.

Reasoning

The sale agreement of 24th November 1998 and the undated transfer were executed by persons with no legal capacity to act for the estate. Following Macfoy, a void act is an incurable nullity needing no court order to set aside. The trial Judge therefore erred in finding that the 1st respondent lawfully acquired the property, and her counterclaim, save for mesne profits as ordered below, ought to have been dismissed.

p. 8

Legal principles established

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  • A power of attorney is automatically revoked upon the death of the donor and cannot be relied upon after the donor's death.
  • No person may sell or transfer a deceased person's property without a grant of representation or other lawful authority; dealings with a deceased's estate in disregard of the Public Trustee are a nullity.
  • A transaction entered into by persons without legal capacity is void and a nullity, requiring no court order to set aside.
  • On a first appeal, the Court of Appeal's mandate is to re-evaluate, re-assess and re-analyse the evidence on the record and determine whether the trial court's conclusions should stand.
  • The burden of proof lies on the party who alleges and would fail if no evidence at all were given; a claimant must produce evidence of ownership documents and proof of payment of the purchase price.

Court orders

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  1. 1.The judgment of the Environment and Land Court dated 22nd January 2020 is set aside only to the extent that the 1st respondent's counterclaim stands dismissed
  2. 2.Each party to bear their own costs, the appeal having partly succeeded

Authorities

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Legislation

  • Evidence ActSection 107
  • Evidence ActSection 108
  • Evidence ActSection 109
  • Public Trustee ActSection 6(1)
  • Public Trustee ActSection 6(2)
  • Law of Succession ActSection 45(1)
  • Law of Succession ActSection 46

Cases cited (6)

  • Abok James Odera t/a AJ Odera & Associates v John Patrick Machira t/a Machira & Co Advocates
    [2013] eKLR
  • Peters v Sunday Post Ltd
    [1958] EA 424
  • Mbuthia Macharia v Annah Mutua & Another
    [2017] eKLR
  • Jennifer Nyambura Kamau v Humphrey Mbaka Nandi
    NYR CA Civil Appeal No. 342 of 2010 [2013] eKLR
  • Samuel Kamere v Lands Registrar, Kajiado
    [2015] eKLR
  • Macfoy v United Africa Co. Ltd
    [1961] 3 All ER 1169
On appeal from
Environment and Land Court
Jurisdiction invoked
First appeal to the Court of Appeal under the appellate framework governing appeals from the Environment and Land Court (the judgment does not expressly cite the enabling provision)

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, "Angote (Suing as Personal Representative of the Estate of Lucas Adam Onyango) v Mweu & another (Civil Appeal E093 of 2021) [2024] KECA 729 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/729/eng@2024-06-21

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