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ELCAllowedKericho ELC (Plaint dated 24th February 2016)· [2017] KEELC 35 (KLR)

Charles Cheruiyot Mosonik & another v David Kipkemoi Siele & 4 others [2017] KEELC 35 (KLR)

Environment and Land Court
2 November 2017
1,827 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kericho court cancelled land transferred after the owner's death, confirming that only administrators with a grant of representation can lawfully deal with a deceased person's property in Kenya.

What this practically means

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Executive summary

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By a plaint dated 24th February 2016, the plaintiffs, administrators of the estate of Peter Tengecha Serem (deceased), sued the 1st and 2nd defendants and the 3rd and 5th defendants challenging the sub-division of LR No. 631/21/IV, registered in the deceased's name, into Kericho Municipality Block 1/382 and 383, and the transfer of Block 1/383 to the 1st and 2nd defendants. They sought declarations that the sub-division and transfer were null and void, cancellation of the 1st and 2nd defendants' title, and a permanent injunction. The defendants denied fraud, the 1st and 2nd claiming valid sale and exchange agreements with the original proprietor's knowledge, and the 3rd and 5th asserting that any transfer was procedural. At the hearing on 20th June 2017 only the plaintiffs attended and testified. The plaintiff showed that the original title was surrendered by an unknown person six months after the deceased's death in April 2011, that a lease was registered in May 2014 over a transfer form allegedly signed in October 2010, and that a 2014 consent was obtained without the administrators' involvement. Applying the principle in In Re estate of Shem Okari Orina (Deceased) on sections 45 and 46 of the Law of Succession Act, the court held that only grant holders may deal with estate property, found the transactions fraudulent and unlawful on a balance of probabilities, entered judgment for the plaintiffs as prayed, cancelled the 1st and 2nd defendants' title to revert to the administrators for distribution, issued a permanent injunction, and awarded costs against the 1st, 2nd and 3rd defendants.

Key legal issues

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01

Validity of sub-division and transfer of a deceased's land effected without involvement of his administrators

Holding

The sub-division of LR No. 631/21/IV and transfer of Kericho Municipality Block 1/383 to the 1st and 2nd defendants was un-procedural, fraudulent and unlawful, and the title must be cancelled.

Reasoning

The original title was surrendered by an unknown person six months after the proprietor's death; a lease registered in 2014 was alleged to be based on a transfer form signed in 2010 by a man who died in 2011; documents were signed almost four years before presentation; and the administrators who held the grant were never involved. The 1st and 2nd defendants did not testify. The 3rd defendant registered the transfer without inquiry. The court found fraud proved on a balance of probabilities and cancelled the title.

p. 2
02

Authority to deal with a deceased person's property

Holding

Only holders of a grant of representation may lawfully deal with a deceased's estate property; the 1st and 2nd defendants had no legal right to deal with the deceased's property without involving the plaintiffs who had obtained a grant.

Reasoning

The court adopted the position in In Re estate of Shem Okari Orina (Deceased) on sections 45 and 46 of the Law of Succession Act, that a grant vests the estate in the grant holder, who alone has custody of documents of title and power to contract for the estate. Non-grant holders lack such powers, making the impugned transactions incapable of passing lawful title.

p. 2

Legal principles established

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  • The property of a deceased person can only be handled by persons authorised in law, principally holders of a grant of representation; dealings by non-holders are unlawful and may vitiate transactions.

Court orders

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  1. 1.Declaration that the sub-division of LR No. 631/21/IV was and is illegal, unlawful and unprocedural, hence null and void
  2. 2.Declaration that the transfer of land parcel number KERICHO MUNICIPALITY BLOCK 1/383 to the 1st and 2nd defendants was and is illegal, unlawful and unprocedural, hence null and void
  3. 3.Cancellation of the title in the name of the 1st and 2nd defendants in respect of KERICHO MUNICIPALITY BLOCK 1/383, to revert to the plaintiffs as lawful administrators of the estate of Peter Tengecha Serem - Deceased for distribution to his beneficiaries
  4. 4.Permanent injunction restraining the defendants, their agents and/or servants from advertising, selling, entering, dealing with, transferring or interfering with KERICHO MUNICIPALITY BLOCK 1/383
  5. 5.Costs of the suit to be borne by the 1st, 2nd and 3rd defendants

Authorities

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Legislation

  • Law of Succession Actsections 45, 45(2) and 46
  • Registration of Titles Actconversion of title
  • Registered Land Actregistration of converted and subdivided titles

Cases cited (1)

  • In Re estate of Shem Okari Orina – (Deceased)
    2014 eKLR
Jurisdiction invoked
Original civil suit on land title, Environment and Land Court

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, "Charles Cheruiyot Mosonik & another v David Kipkemoi Siele & 4 others [2017] KEELC 35 (KLR)", Case Analysis (2017). Kericho ELC (Plaint dated 24th February 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/35/eng@2017-11-02

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