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ELCAllowedNot stated in the judgment (Application dated 18th November, 2016)· [2017] KEELC 3355 (KLR)

Samuel Maweu Vuva v Esther Nzisa Kathumbi & 2 others [2017] KEELC 3355 (KLR)

Environment and Land Court
17 March 2017
778 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Machakos court stopped land dealers from selling disputed land, ruling that selling a dead person's property before getting legal authority is unlawful but can be fixed later.

What this practically means

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Executive summary

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This is an interlocutory ruling by the Environment and Land Court at Machakos (Oscar A. Angote, J) on the Plaintiff's application dated 18th November, 2016. The Plaintiff sought an injunction restraining the 1st, 2nd and 3rd Defendants from trespassing on, selling, disposing of, evicting him from or otherwise dealing with Title Number Kalama/Muumandu/547 pending the hearing and determination of the suit, plus costs. The Plaintiff claimed he purchased the property from the 1st and 2nd Defendants on 7th December, 1987, had been in exclusive, continuous and uninterrupted occupation since, and had paid the purchase price, but the Defendants refused to transfer the land, which was registered in the name of the deceased Kathumbi Itisya Kithoi. The Defendants countered that the transaction was a lease, not a sale; that no letters of administration existed at the time of the alleged sale, rendering it null and void; that the agreements were drafted by the Plaintiff; and that by 1995 the money paid was agreed to be payment for a five-year lease. The court held it was not in dispute that the registered owner was dead when the Plaintiff purported to purchase, and that dealing with a deceased's estate before obtaining letters of administration constitutes intermeddling and is unlawful. However, expressing a pragmatic view, the court observed such a sale can be validated after confirmation of the grant, with beneficiaries ceding their share pro-rata to the purchaser. Since the Defendants did not deny receiving money from the Plaintiff and had put him in possession, the court found a prima facie case with chances of success and likely irreparable damage, and allowed the application as prayed, preserving the suit property pending trial.

Key legal issues

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01

Validity of a sale of a deceased's property before grant of letters of administration

Holding

Such a sale is unlawful intermeddling, but the court expresses the view that it can be validated after confirmation of the grant, with beneficiaries ceding their share pro-rata to the purchaser.

Reasoning

The court noted the registered owner was dead at the time of the purported sale. It observed that beneficiaries commonly deal with a deceased's estate before obtaining letters of administration, which constitutes intermeddling. However, adopting a pragmatic stance, the court stated such a sale can be validated post-confirmation, with beneficiaries held liable by ceding their share pro-rata to the purchaser.

p. 2
02

Entitlement to an interlocutory injunction and preservation of the suit property

Holding

Having admitted receipt of money from the Plaintiff in respect of the suit property and having put the Plaintiff in possession, the Defendants should have the property preserved pending trial; a prima facie case with chances of success and irreparable damage were established.

Reasoning

The court found it undisputed that the property was registered in the name of the deceased, and that the Defendants had not denied collecting money from the Plaintiff. Whether the money was for sale or lease was reserved for trial. But having admitted receipt of money and put the Plaintiff in possession, the court held preservation by way of injunction proper pending determination of the suit.

p. 2

Legal principles established

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  • Dealing with the estate of a deceased person before obtaining letters of administration, including selling estate property, is intermeddling and unlawful.
  • A sale of part of the estate of a deceased person before confirmation of a grant, though unlawful, can be validated after confirmation, with the beneficiary ceding their share pro-rata to the purchaser.

Court orders

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  1. 1.The 1st, 2nd and 3rd Defendants/Respondents, their servants, agents, employees, assigns or any person authorised to act for them are restrained by an order of injunction from trespassing onto, selling, disposing of, evicting the Plaintiff/Applicant from, or otherwise dealing with Title Number Kalama/Muumandu/547 pending the hearing and final determination of the suit
  2. 2.Costs of the Application provided for
Jurisdiction invoked
Not expressly stated; Environment and Land Court adjudicating an interlocutory injunction application in a land suit

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, "Samuel Maweu Vuva v Esther Nzisa Kathumbi & 2 others [2017] KEELC 3355 (KLR)", Case Analysis (2017). Not stated in the judgment (Application dated 18th November, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3355/eng@2017-03-17

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