Faustine Omwanda Kweyu v Carol Majuma Wanyonyi & another [2017] KEELC 3373 (KLR)
The bottom line
#A Kenyan court dismissed a widow's land suit because she wasn't part of the disputed sale contract and couldn't benefit from an illegal transfer.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff, a stranger to the sale contract between the defendant and the third party, could enforce or nullify it
The plaintiff could not; under the doctrine of privity of contract, she could neither nullify the contract nor claim entitlement to refund the purchase price.
The court applied the privity doctrine as stated in Rose Ayuma Musawa, Dunlop v Selfridge and Agricultural Finance Corporation v Lengetia. The plaintiff was not privy to the 2012 sale agreement between the defendant and the third party, so she could not seek its nullification, seek to refund money not paid to her, or enjoy an injunction flowing from that contract.
Whether the sale and the subsequent transfers of the deceased's land were valid
Both the sale and the transfers were null and void for want of land control board consent and for contravening section 45(1) of the Law of Succession Act.
No grant of representation had been taken out when the third party sold two acres and transferred the whole parcel to herself, contrary to section 45(1) of the Law of Succession Act. No land control board consent was obtained either. The transaction was therefore a nullity, and the subsequent transfer to the plaintiff and her son, coerced after the fact, could not sanitise a process which was a nullity ab initio.
Whether a party can benefit from an illegal transaction
No; the plaintiff, now registered as owner through a flawed process, could not derive benefit from an illegal process once the illegality was before the court.
The plaintiff's registration as owner resulted from coercing the third party into transferring land that had been dealt with in breach of the Law of Succession Act. The court held that she was seeking to derive benefits from a process flawed from the beginning, and a court of law cannot allow a party to benefit from an illegal process where the illegality is brought to its attention.
Legal principles established
#- A contract cannot be enforced by, nor can a stranger to it benefit from, a person who is not a party to it (privity of contract).
- No person may take possession of, dispose of, or intermeddle with free property of a deceased person except as expressly authorized by law or by a grant of representation.
- A court cannot allow a party to benefit from an illegal process, especially where the illegality is brought to the attention of the court.
Court orders
#- 1.The plaintiff's suit is dismissed
- 2.Costs of the suit to the defendant only
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court) - implied from the court's jurisdiction over land disputes; not expressly stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Faustine Omwanda Kweyu v Carol Majuma Wanyonyi & another [2017] KEELC 3373 (KLR)", Case Analysis (2017). Land Case No. 164 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3373/eng@2017-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.