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ELCAllowedPetition dated 26th November 2012· [2015] KEELC 483 (KLR)

G A D v A M A M [2015] KEELC 483 (KLR)

High Court of Kenya
22 May 2015
1,759 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Petitioner petitioned for appointment as guardian ad litem, guardian and manager of the estate of the Respondent, her cousin, who suffers from mental illness, and for a permanent injunction restraining the Interested Party from interfering with a house on land known as Lamu/Block [particulars withheld]. The Interested Party had purchased the house from the Respondent on 12th October 2011 for Kshs.900,000, contending the Respondent was of sound mind and had proved ownership by affidavit. The Petition proceeded by viva voce evidence. A consultant psychiatrist testified that he had treated the Respondent for paranoid schizophrenia for six years and that the Respondent remained mentally unwell when assessed on 7th April 2014; this evidence was uncontroverted, the Interested Party neither testifying nor filing submissions. The court found the Respondent lacked capacity when he purported to sell the house. Applying Sections 26 and 27 of the Mental Health Act, the court appointed the Petitioner as guardian ad litem, guardian and manager of the subject's estate. Relying on Sections 2(3) and (4) and 82(b)(ii) of the Law of Succession Act, the court held the house belonged to the Respondent's deceased father's unadministered estate and could not validly be sold before confirmation of grant, particularly by a person of unsound mind who was not the administrator. The court noted that if the parties profess the Muslim faith, inheritance questions fall to the Kadhi's court under Section 5 of the Kadhi's Act and Article 170(5) of the Constitution. The Petition was allowed; the sale agreement of 12th October 2011 was declared null and void, a permanent injunction issued, and the Interested Party ordered to pay the costs.

Key legal issues

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01

Capacity of the Respondent to enter into the sale agreement

Holding

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

Reasoning

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.

p. 3
02

Appointment of guardian and manager under the Mental Health Act

Holding

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

Reasoning

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.

p. 4
03

Validity of the sale of property forming part of an unadministered estate

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Petitioner be and is hereby appointed guardian ad litem for the subject A M A M
  2. 2.The Petitioner be and is hereby appointed as a guardian of the subject
  3. 3.The Petitioner be and is hereby appointed the Manager of the Estate of the subject
  4. 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. 5.The Sale Agreement of 12th October 2011 be and is hereby declared null and void
  6. 6.The Interested Party to pay the costs of the Petition

Authorities

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Legislation

  • Mental Health ActSections 2, 26, 27, 28
  • Law of Succession ActSections 2(3) and (4), 82(b)(ii)
  • Kadhi's ActSection 5
  • Constitution of KenyaArticle 170(5)

Cases cited (1)

  • Touristik Union International & Another Vs Jane Mbeyu & Another
    (1993) eKLR
Jurisdiction invoked
Sections 26, 27 and 28 of the Mental Health Act

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, "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.