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ELCDismissedNotice of Motion dated 17th December 2015 (suit filed 18th December 2015)· [2016] KEELC 331 (KLR)

Muriuki Samson Muriithi & another v James Mwangi Gerald & 2 others [2016] KEELC 331 (KLR)

Environment and Land Court
14 October 2016
BOB. N. Olao
3,082 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to protect land buyers who purchased a deceased person's property before probate was confirmed, ruling their sale agreements illegal.

What this practically means

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Executive summary

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The plaintiffs moved the court by Notice of Motion dated 17th December 2015 under Order 40 Rules 1 and 3 of the Civil Procedure Rules seeking a temporary injunction restraining the defendants from interfering with their activities on land parcel No. KIINE/RUKANGA/146 pending trial. They claimed to have paid Ksh. 630,000 to the 1st to 4th defendants between 2011 and 2014 for portions of the land, which was then registered in the name of the defendants' deceased brother, Benson Murage Mbogo. They took possession and developed the land, but the defendants transferred it to the 5th defendant after confirmation of grant in Kerugoya High Court Succession Cause No. 493 of 2014, and he demanded vacant possession. The defendants conceded receiving Ksh. 508,000, offered to refund it, and contended the agreements were void under the Land Control Act and Law of Succession Act, and that the court lacked jurisdiction over what was a civil debt. The 5th defendant, as registered proprietor, counterclaimed for eviction. The court first upheld its jurisdiction under Section 13 of the Environment and Land Court Act, dismissing the objection. It then held that all sale agreements, made between 2011 and 2013 before confirmation of grant, were illegal under Sections 45(1) and 82 of the Law of Succession Act as intermeddling with a deceased's free property, and unenforceable on ex turpi causa grounds, the plaintiffs having known no grant was confirmed. No prima facie case was therefore established under the Giella test, whose conditions apply sequentially. As to the 5th defendant, his title under Sections 24 and 26(1) of the Land Registration Act 2012 was indefeasible, no fraud having been pleaded or proved. The application was dismissed with no costs to the plaintiffs due to their conduct.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over a claim for refund of purchase price

Holding

The Court has jurisdiction over both the injunction and refund claims as they relate to land

Reasoning

The jurisdictional objection, based on the claim being a civil debt, failed because the remedies sought by both parties fall within Section 13 of the Environment and Land Court Act. Nothing prevents the Court from ordering a refund where a land transaction has failed.

p. 4
02

Validity of agreements to sell estate land before confirmation of grant

Holding

The agreements were illegal and unenforceable as the defendants were not administrators before confirmation of grant

Reasoning

Sections 45(1) and 82 of the Law of Succession Act prohibit disposal of a deceased's immovable property before confirmation of grant. The defendants who intermeddled committed a criminal offence, and the plaintiffs knew no confirmed grant existed, implicating them in the illegality.

p. 5
03

Injunction against a registered proprietor under the Land Registration Act

Holding

The 5th defendant's title is indefeasible absent pleaded and proved fraud, misrepresentation, illegality or trust

Reasoning

Under Sections 24 and 26(1) of the Land Registration Act 2012, the registered proprietor is absolute and indefeasible owner. No fraud was pleaded against the 5th defendant, and no trust was suggested, so his title could not be impugned at the interlocutory stage.

p. 6

Legal principles established

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  • No immovable property forming part of a deceased's estate shall be sold before confirmation of the grant
  • Courts will not enforce illegal contracts, even where illegality arises from the plaintiff's own evidence

Court orders

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  1. 1.The plaintiffs' Notice of Motion dated 17th December 2015 is dismissed
  2. 2.The plaintiffs shall not be entitled to costs because of their conduct which was not above board

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1 and 3
  • Law of Succession ActSection 82
  • Law of Succession ActSection 45(1)
  • Land Registration Act 2012Section 26(1)
  • Land Registration Act 2012Section 24
  • Environment and Land Court ActSection 13
  • Land Control Actreferred to generally

Cases cited (7)

  • GIELLA VS CASSMAN BROWN & CO. LTD
    1973 E.A 358
  • OWNERS OF THE MOTOR VESSEL 'LILLIAN S' VS CALTEX OIL (KENYA) LTD
    1989 K.L.R 1
  • MRAO LTD VS FIRST AMERICAN BANK OF KENYA LTD & TWO OTHERS
    C.A CIVIL APPEAL No. 39 of 2002
  • FILMS ROVER INTERNATION LTD VS CANNON FILM SALE LTD
    1986 3 ALL E.R 772
  • MISTRY AMAR SINGH VS SERWANO WOFUNIRA KULUBYA
    1963 E.A 408
  • HEPATULLA VS NOORMOHAMED
    (1084) K.L.R 580
  • KENYA COMMERCIAL FINANCE CO. LTD VS AFRAHA EDUCATION SOCIETY
    2001 E.A 86
Jurisdiction invoked
Section 13 of the Environment and Land Court 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, "Muriuki Samson Muriithi & another v James Mwangi Gerald & 2 others [2016] KEELC 331 (KLR)", Case Analysis (2016). Notice of Motion dated 17th December 2015 (suit filed 18th December 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/331/eng@2016-10-14

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