G A D v A M A M [2015] KEELC 483 (KLR)
The bottom line
#Kenya's High Court cancelled a house sale after finding the seller had schizophrenia, and buyers who ignore mental capacity risks lose both property and costs.
What this practically means
#Executive summary
#Key legal issues
#Capacity of the Respondent to enter into the sale agreement
The Respondent was mentally ill when he purported to enter into the agreement of 12th October 2011 and had no capacity to sell the house
The consultant psychiatrist, Dr. Mwangome, testified that he had treated the Respondent for paranoid schizophrenia for six years and that on 7th April 2014 the Respondent was still suffering from mental disorder and needed psychiatric admission. This unchallenged expert evidence, with no contrary expert evidence adduced by the Interested Party (who did not even testify), satisfied the court that the Respondent lacked capacity at the material time.
Appointment of guardian and manager under the Mental Health Act
The court appointed the Petitioner as guardian ad litem, guardian and manager of the subject's estate under Sections 26 and 27 of the Mental Health Act
Having found the Respondent suffers from mental disorder as defined by Section 2 of the Mental Health Act, the court invoked Section 26 (guardianship by a near relative or other person) and Section 27 (appointment of a manager of the estate). The Petitioner, a cousin with no competing interest, was found suitable and appointed to both offices.
Validity of the sale of property forming part of an unadministered estate
The sale agreement of 12th October 2011 was null and void because the Respondent was not the administrator of his late father's estate and immovable property cannot be sold before confirmation of grant
Under Section 2(3) and (4) of the Law of Succession Act, the estate of the Respondent's father had to be administered before it could vest in anyone, including the subject. Section 82(b)(ii) prohibits sale of immovable property before confirmation of grant. The Respondent, being of unsound mind and not an administrator, could pass no interest, rendering the sale void ab initio. The court noted that if the parties are Muslim, inheritance questions fall to the Kadhi's court.
Legal principles established
#- Evidence of mental illness that is uncontroverted by other expert evidence establishes lack of capacity to contract
- A person of unsound mind cannot pass title to estate property that has not been administered; a sale by a non-administrator is null and void ab initio
- Immovable property forming part of a deceased's estate cannot be sold before confirmation of grant
Court orders
#- 1.The Petitioner be and is hereby appointed guardian ad litem for the subject A M A M
- 2.The Petitioner be and is hereby appointed as a guardian of the subject
- 3.The Petitioner be and is hereby appointed the Manager of the Estate of the subject
- 4.A permanent injunction be and is hereby issued restraining the Interested Party, his servants and or agents from demolishing, altering, developing, constructing on or in any other way interfering with the house on Lamu/Block/ [particulars withheld]
- 5.The Sale Agreement of 12th October 2011 be and is hereby declared null and void
- 6.The Interested Party to pay the costs of the Petition
- Jurisdiction invoked
- Sections 26, 27 and 28 of the Mental Health Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "G A D v A M A M [2015] KEELC 483 (KLR)", Case Analysis (2015). Petition dated 26th November 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/483/eng@2015-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.