Susan Chepkemoi Motelin v Thomas Kiplangat Arap Soi & 2 others [2017] KEELC 227 (KLR)
The bottom line
#A Kenyan court froze dealings on family land sub-divided without a confirmed succession grant, blocking further transfers pending the full hearing.
What this practically means
#Executive summary
#Key legal issues
#Validity of sub-division and transfer of estate land without a confirmed grant
The sub-division and transfer was unlawful and unprocedural because the Administratrix's grant had not been confirmed; even if done by the Administratrix, she had no legal authority to distribute capital assets before confirmation
Section 55 of the Law of Succession Act bars distribution of capital assets before confirmation of grant under section 71. The court found it was common ground that the sub-division and transfer occurred in 2014 during the Administratrix's lifetime while her grant in Nakuru HC Succession Cause No. 139 of 1992 remained unconfirmed. Accordingly, the disposition was unprocedural regardless of who effected it, and the applicant's beneficiary rights appeared to have been infringed.
Whether an order of inhibition should issue
Inhibition issued; the applicant established a prima facie case with probability of success, the land was in danger of alienation (alleged intended charge to a bank), and damages would not adequately compensate in a land dispute
Guided by Michael Kimani Thuo & Another v Sospeter Kariuki Ndoro, the court considered danger of alienation, whether the suit would be rendered nugatory, an arguable case, party conduct and prejudice. The respondents had obtained titles through an unprocedural sub-division and the 1st Respondent was reportedly preparing to charge a title to a bank. Applying Giella and the lower-risk-of-injustice principle from Amir Suleiman v Amboseli Resort, the court found all tests satisfied.
Alleged fraud by the Defendants
Not determined at this interlocutory stage; left for the full hearing
Although form RL 7 was prepared by the Administratrix in 2012 and the sub-division and transfer took place in 2014 with three titles registered to the Defendants, the affidavits did not permit a conclusive finding of fraud. The court held that fraud allegations require evidence tested by cross-examination at the hearing.
Legal principles established
#- No grant of representation confers power to distribute capital assets or divide property unless and until the grant has been confirmed
- An order of inhibition is in the nature of an injunction and the applicant must meet the Giella v Cassman Brown criteria for temporary injunctive relief
Court orders
#- 1.An order of inhibition barring the registration of any disposition in the registers in respect of all parcels of land comprised in L.R Nos. KERICHO/CHESOEN/2922, 2923, 2924, 2925 and 2926 pending the hearing and determination of the suit
- 2.A copy of the order of inhibition, with particulars of the land parcels, to be served upon the Land Registrar, Kericho for registration in the appropriate register
- 3.The parties to comply with pre-trials within 45 days to expedite the hearing and determination of the suit
- 4.Costs of the application to be in the cause
- Jurisdiction invoked
- Sections 3A and 63(c) of the Civil Procedure Act and Order 40 rule 1 and Order 51 rule 1 of the Civil Procedure Rules; section 68(1) of the Land Registration Act (order of inhibition)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Susan Chepkemoi Motelin v Thomas Kiplangat Arap Soi & 2 others [2017] KEELC 227 (KLR)", Case Analysis (2017). Notice of Motion dated 7th February 2017 (Kericho ELC suit, details not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/227/eng@2017-11-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.