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ELCAllowednot stated in extract (application dated 2015, interim injunction issued 1/10/2015)· [2016] KEELC 917 (KLR)

Arthur I. Shikanga Mulama (Suing On Behalf Of Deborah Chitilwa Amahwa) v Elphas Nandi [2016] KEELC 917 (KLR)

High Court of Kenya (likely Environment and Land Court), Kitale
21 April 2016
EOE. Obaga
946 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 blocked a buyer from using land sold after the owner's death by her brother, ruling only the appointed executor could sell estate property.

What this practically means

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Executive summary

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The Applicant, son of the executor named in the will of the late Deborah Chitilwa Amahwa and holder of a limited grant of letters of administration over her estate, applied for a temporary injunction to restrain the Respondent from interfering with 5 acres out of LR No. 7393 in Trans-Nzoia purchased by the deceased. The Respondent claimed he had bought the land in February 2008 from John Shikanga Amahwa, brother of the deceased, for Kshs 1,560,000, and had occupied and developed it since; he argued the estate had been fully distributed under a certificate of confirmation of 17/5/2000 and that the claim was caught by limitation. Applying the Giella v Cassman Brown principles, the court found the Respondent's own annexed sale agreement fatal to his position: the deceased had died before the sale, so she could not have consented as the agreement alleged, and John Shikanga Amahwa, not being the appointed executor, had no authority to sell the deceased's property. The court held the sale was fraudulent and that the Applicant had established a prima facie case with probability of success. The court confirmed the interim injunction issued on 1/10/2015, restraining the Respondent, his servants and agents from interfering with the 5 acres until hearing and determination of the suit, and ordered the Respondent to pay the costs of the application.

Key legal issues

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01

Prima facie case for temporary injunction

Holding

The Applicant, holder of a limited grant as administrator of the deceased's estate, demonstrated a prima facie case where the alleged sale of the deceased's land occurred after her death and without the seller having authority from the estate

Reasoning

The court applied the Giella v Cassman Brown test. It found uncontested that the Applicant held a limited grant and that the deceased had purchased 5 acres out of LR No. 7393. The Respondent's own annexed sale agreement showed the brother, John Shikanga Amahwa, sold the land a year after the deceased's death, falsely alleging her consent. As she was dead, she could not consent, and the sale was fraudulent.

p. 2
02

Authority to transact over a deceased's estate

Holding

A person other than the appointed executor has no authority to sell the deceased's property; a sale on that footing is fraudulent

Reasoning

The deceased had written a will appointing David Amahwa Mulama as executor. John Shikanga Amahwa was not that executor and had no authority to transact business on behalf of the deceased, hence the sale to the Respondent could not pass the deceased's interest.

p. 2

Legal principles established

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  • A person selling a deceased's property without authority (where the deceased has appointed an executor) commits a fraud on the estate

Court orders

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  1. 1.Confirmation of the interim injunction orders issued on 1/10/2015 and subsequently extended
  2. 2.An injunction restraining the Defendant/Respondent, his servants and/or agents from interfering in any manner with the 5 acres out of LR No. 7393 at Trans-Nzoia belonging to the estate of Deborah Chitilwa Amahwa until hearing and determination of the suit
  3. 3.Respondent to pay costs of the application

Authorities

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Cases cited (1)

  • Giella – vs- Cassman Brown Co. Ltd
    [1973] EA 358
Jurisdiction invoked
Original jurisdiction over succession/land dispute; the judgment does not cite a specific constitutional or statutory 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, "Arthur I. Shikanga Mulama (Suing On Behalf Of Deborah Chitilwa Amahwa) v Elphas Nandi [2016] KEELC 917 (KLR)", Case Analysis (2016). not stated in extract (application dated 2015, interim injunction issued 1/10/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/917/eng@2016-04-21

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