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ELCPartially AllowedELC Land Case No. 165 of 2013· [2017] KEELC 2982 (KLR)

Aurthur Ngugi Mbugua & 2 others v Saidi Jadi Kongo & another [2017] KEELC 2982 (KLR)

Environment and Land Court
9 May 2017
AOA. Omollo
3,039 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court voided the sale of a dead man's land bought before succession was completed, so the buyers lost the property and their money.

What this practically means

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Executive summary

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The three plaintiffs, administrators of the estate of the late Jotham Mbugua Mwenja who died intestate in 2005, sued the two defendants over Title No. MSA/MS/I/1537 registered in the deceased's name. They sought declarations that the property forms part of the estate and was unavailable for sale pending completion of succession, that the December 2009 sale agreement between the 3rd plaintiff and the defendants was null and void, a permanent injunction, demolition of improvements, damages and costs. The defendants contended the 3rd plaintiff represented himself as sole beneficiary, was paid the full price of Kshs 850,000, and that they were innocent purchasers who had developed the plot. The 2nd and 3rd plaintiffs testified for the defendants, disowning the suit. The court framed two issues: validity of the sale and whether the suit was defective for want of co-administrators' consent. Applying section 55 of the Law of Succession Act, the court held the grant was only confirmed on 21 May 2014, after the sale, so the 3rd plaintiff lacked capacity and the sale was null and void; the 1st defendant, who knew the owner was deceased, could not claim innocent purchaser protection, and equity follows the law. The claimed gifting/exchange of plots was a matter for the succession court. On the second issue, the court found the authority signed by the 2nd and 3rd plaintiffs valid and unrevoked and distinguished the authorities cited by the defendants. Judgment was entered as per prayers (a) to (f); damages were refused as none was proved, and each party was ordered to bear their own costs.

Key legal issues

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01

Validity of the sale of deceased's property before grant/confirmation

Holding

The sale was null and void because the 3rd plaintiff had no capacity to sell the suit property in 2009 before confirmation of the grant; the 1st defendant, knowing the registered owner was deceased, could not rely on innocent purchaser protection.

Reasoning

The court relied on section 55 of the Law of Succession Act Cap 160, which prohibits distribution of capital assets before confirmation of a grant. The grant was only confirmed on 21 May 2014, long after the December 2009 sale. The 1st defendant admitted knowing the owner was deceased and that the seller lacked capacity. The claimed family gifting/exchange was unsupported by evidence and was a matter for the succession court, not this Court. Equity follows the law and cannot validate the void sale.

p. 4
02

Whether the suit was defective for want of consent of co-administrators

Holding

The suit was properly commenced since all three administrators were listed as plaintiffs and the 2nd and 3rd plaintiffs signed an authority to appear, plead or act in favour of the 1st plaintiff; the cases cited by the defendants were distinguishable.

Reasoning

The court found the authority document signed by the 2nd and 3rd plaintiffs valid and never revoked. DW3's claim that he signed only to enable withdrawal of the suit was dismissed as an afterthought and a 'white lie'. The facts were distinguishable from Michael Chole Lugalia (administrator filing suit alone) and Research International (non-compliance with Order VII rule 1(2)), because here all administrators were joined and authority was given.

p. 5

Legal principles established

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  • A person who purchases land of a deceased person before confirmation of a grant, knowing the owner is deceased, cannot claim protection as an innocent purchaser for value without notice.
  • A sale of the property of a deceased person by a person without a confirmed grant of representation is null and void, and equity cannot assist the purchaser where equity follows the law.
  • Where all co-administrators are named as plaintiffs and the co-administrators signed an authority to appear, plead or act in favour of the suing administrator, the suit is properly instituted and cannot be struck out for want of authority.

Court orders

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  1. 1.Judgment entered as per prayers (a) to (f) of the plaint, namely: declaration that Title No. MSA/MS/I/1537 forms part of the estate of the late Jotham Mbugua Mwenja and was not available for sale until succession is completed; declaration that the sale agreement does not affect beneficiaries' rights; declaration that the sale was illegal, unlawful, null and void; declaration that the defendants' remedies lie against the 3rd plaintiff; permanent injunction restraining the defendants from constructing, developing, trespassing, occupying or dealing with the suit property; and an order compelling the defendants to demolish the improvements and carry away debris and building materials at their cost.
  2. 2.No damages awarded as none was proved.
  3. 3.Each party to bear their own costs of the suit.

Authorities

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Legislation

  • Law of Succession ActSection 55
  • Law of Succession ActSection 31
  • Law of Succession ActSection 45
  • Civil Procedure RulesOrder VII rule 1(2)
  • Civil Procedure RulesOrder 1 rule 13

Cases cited (3)

  • Michael Chole Lugalia (suing as the administrator of the estate of Ezekiel Mayani Lugalia) vs Jonathan Ligure Ayodi
    (2016) eKLR
  • Research International East Africa Ltd vs Julius Arisi & 213 others
    (2007) eKLR
  • R vs Nairobi City Council
    Misc Civil Application No 103'b' of 2013
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to title to land

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (12)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Aurthur Ngugi Mbugua & 2 others v Saidi Jadi Kongo & another [2017] KEELC 2982 (KLR)", Case Analysis (2017). ELC Land Case No. 165 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2982/eng@2017-05-09

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