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ELCPartially AllowedNot stated in judgment (Notice of Motion dated 19th December 2016)· [2017] KEELC 3187 (KLR)

Irene Chepngetich Rop (suing as the legal representative of the Estate of Rael Chepkosgei Rop) v Samuel Kibowen Towett [2017] KEELC 3187 (KLR)

Environment and Land Court
20 April 2017
1,756 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that no one can validly sell a deceased person's land before the succession court confirms who owns what.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru by D. O. Ohungo J dealt with a Notice of Motion dated 19th December 2016 by the plaintiff, administrator ad litem of the estate of Rael Chepkoskei Rop (deceased), seeking an injunction to restrain the defendant from trespassing on and constructing on parcel Shawa/Gicheha Block 1/134 pending the hearing of the suit. The plaintiff had on 14th December 2016 obtained letters of administration ad litem in Succession Cause No. 344 of 2016 limited to instituting proceedings to protect the suit property. She alleged the defendant purchased a portion of the land on 13th September 2014 from Moses Kipkemoi Maiyo, a son of the deceased who lacked capacity to sell, the estate being undistributed. The defendant opposed through a preliminary objection in the defence arguing that the dispute concerned distribution of the estate and belonged in the succession court, and on the merits maintained he bought a portion of a beneficiary's share and had developed the land to the tune of KShs 4 million. The court dismissed the preliminary objection, holding that Succession Cause No. 130 of 2000 related to the deceased's husband's estate, so there were no parallel succession causes, and that the suit was properly filed pursuant to the letters of administration ad litem. On the merits, the court held that without a confirmed grant a beneficiary could not determine what portion was his to sell, distribution being for the succession court. Finding a prima facie case with a probability of success and that damages would not adequately compensate the estate, the court granted an injunction restraining the defendant from interfering with the plaintiff's quiet possession, constructing, or trespassing pending determination of the suit, and awarded costs to the plaintiff. Dated, signed and delivered at Nakuru on 20th April 2017.

Key legal issues

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01

Whether the preliminary objection on capacity and jurisdiction had merit

Holding

The objection was dismissed; the plaintiff, holding letters of administration ad litem, had capacity and the suit was properly before the court.

Reasoning

The objection claimed two parallel succession causes existed over the same estate. The court found Succession Cause No. 130 of 2000 concerned the deceased's husband, who died in 2013, so no duplication existed. As to jurisdiction, the plaintiff's letters of administration ad litem expressly authorised instituting proceedings to protect the suit property, so the suit was properly filed in this court.

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02

Whether a beneficiary could sell a portion of the deceased's land before confirmation of grant

Holding

No. With no confirmed grant, a beneficiary cannot determine what portion is his to sell; distribution is for the succession court.

Reasoning

The court accepted that the vendor sold only a portion of his purported share, but held that without a confirmed grant the extent of any beneficiary's share is undetermined. Since a succession cause existed over the estate, the succession court alone would determine distribution. The defendant's development expenditure of KShs 4 million was unsupported by documentary evidence.

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03

Whether an injunction should issue

Holding

Yes; a prima facie case with a probability of success was established and damages would not adequately compensate the estate.

Reasoning

The plaintiff held letters of administration ad litem for the purpose of protecting the suit property. The purchase by the defendant, made after the deceased's death and before confirmation of grant, exposed the estate to loss. Preservation of the property was necessary and damages were considered inadequate, satisfying the injunction conditions.

p. 4

Legal principles established

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  • A beneficiary of an undistributed estate cannot validly sell a portion of estate land before confirmation of a grant, as the extent of each share is undetermined and distribution is for the succession court.
  • A suit filed pursuant to letters of administration ad litem limited to protecting specific estate property is properly before the court seized of the suit.

Court orders

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  1. 1.An injunction restraining the defendant, whether acting in person, by proxy, through his agents, servants, employees, officers or any other person acting at his behest, from interfering with the plaintiff's quiet possession, proceeding with any construction work and/or trespassing into the parcel of land known as Shawa/Gicheha Block 1/134 pending hearing and determination of the suit
  2. 2.Costs to the plaintiff
Jurisdiction invoked
Letters of administration ad litem issued in Succession Cause No. 344 of 2016 permitting the plaintiff to institute proceedings to protect parcel No. Shawa/Gicheha Block 1/134

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Irene Chepngetich Rop (suing as the legal representative of the Estate of Rael Chepkosgei Rop) v Samuel Kibowen Towett [2017] KEELC 3187 (KLR)", Case Analysis (2017). Not stated in judgment (Notice of Motion dated 19th December 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3187/eng@2017-04-20

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