Joseph Cheruiyot Chebirir v Charles Mose Sitima & another [2017] KEELC 3561 (KLR)
The bottom line
#A Kenyan court ruled that land sold by someone without authority over a deceased person's estate is void, but gave the buyer 120 days to settle before eviction.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit property was registered in the name of Moraa Momanyi
Yes - the certificate of official search (PEx.3) showed Moraa Momanyi was registered owner on 13th July 1973; the alleged 'Niora Momanyi' did not exist as a registered owner
The plaintiff produced a certificate of official search and a Registry Index Map showing Moraa Momanyi as registered owner since 1973. Defendants claimed registration in the name of 'Niora Momanyi' and claimed to have obtained a search certificate but never produced it. Their own witness statements dated 26th June 2012 affirmed Moraa Momanyi was the registered owner. The court found no person known as Niora Moraa was ever registered.
Whether the plaintiff is the duly appointed administrator of the estate
Yes - the plaintiff held letters of administration issued on 2nd March 2012 in Kisii HC Succession Cause No. 58 of 2012 after revocation of a grant to Gekara Ogeto
The grant earlier issued to Gekara Ogeto was revoked by the High Court in Succession Cause No. 478 of 2011 on 25th November 2011 and fresh letters of administration issued to the plaintiff on 2nd March 2012. The succession court was the appropriate forum to determine both the administrator and the beneficiaries, and any challenge to the grant lies in the court that issued it.
Whether the sale by DW3 (Barnabas Nyantika) to the 2nd defendant was valid
No - the sale was void ab initio as DW3 was an intermeddler with no letters of administration and no capacity to sell the deceased's property
DW3 was not the registered proprietor, did not know who the registered owner was, and had not taken out letters of administration for his late father's estate. Under Section 45 of the Law of Succession Act no person may take possession of or dispose of free property of a deceased person except as expressly authorized; a person who does so is an intermeddler guilty of an offence. The 2nd defendant also failed to conduct due diligence.
Whether adverse possession extinguished the registered owner's title
No - the possession by Onuko Momanyi's family was permissive, not adverse, and the defendants, who entered only in 2010/2011, could not rely on another's possession
The plaintiff's uncontroverted evidence was that his mother permitted Onuko Momanyi to use the land, and neither Onuko nor the 2nd defendant's father ever constructed a house, consistent with permitted use only. Permissive possession defeats adversity. Further, defendants entered the land only in 2010/2011 and could not tack the possession of others; DW3 had no title to pass.
Whether the 1st defendant was wrongly enjoined
No - joinder was proper under Order 1 Rule 7 since the plaintiff was in doubt as to who was liable
At the time of filing suit the plaintiff was not resident on the land and it was reasonable for him to assume the 1st defendant, seen at the site, was constructing the house. The law permits joinder of two or more defendants where the plaintiff is in doubt as to whom redress should be sought, so that liability may be determined as between all parties.
Legal principles established
#- Any transaction touching or relating to a deceased person's estate entered into by a person not authorized to represent the estate is void ab initio
- Possession held with the permission of the registered owner is not adverse possession
- A purchaser must carry out due diligence to ascertain the registered owner and the seller's authority to deal with the property
- A plaintiff in doubt as to the person from whom redress is entitled may join two or more defendants under Order 1 Rule 7
Court orders
#- 1.Declaration that the occupation and possession by the 2nd defendant of land parcel North Mugirango/Magwagwa I/890 and/or portion thereof is unlawful
- 2.Direction that the plaintiff and the 2nd defendant engage in consultations and/or negotiations to reach a settlement out of court within 120 days from the date of the judgment
- 3.In the event the negotiations fail, the 2nd defendant shall yield vacant possession of the portion of land parcel North Mugirango/Magwagwa I/890 to the plaintiff failing which an order of eviction against the 2nd defendant shall issue on application by the plaintiff
- 4.Each party to bear their own costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction over the claim for trespass, injunction and eviction in respect of land parcel North Mugirango/Magwagwa I/890
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Cheruiyot Chebirir v Charles Mose Sitima & another [2017] KEELC 3561 (KLR)", Case Analysis (2017). Case No 86 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3561/eng@2017-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.