Linus Riungu M’kanga v Erastus Njagi Kamundi [2018] KEELC 146 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled land sold before a deceased's estate grant is confirmed is void, but ordered the buyer's money refunded.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff had locus standi to file the suit despite allegations of fraud in his registration
The allegation of fraud against the plaintiff was not proved; the succession court was better seized of the evidence, and the defendant neither pleaded nor proved fraud by counterclaim, so the plaintiff's locus could not be ousted
The defendant made no counterclaim based on fraud, adduced no evidence of fraud and called no witness from the Lands office. The succession proceedings were not placed before the court to infer illegality. Any challenge to the confirmed grant should have been raised in the succession cause or on appeal. The court found the evidence insufficient to support the fraud allegation and therefore could not use it to defeat the plaintiff's locus.
Whether the defendant, as purchaser from a non-owner beneficiary, had a valid claim to the suit land
No. The sale agreement of 22/4/2002 with M'Kanga M'Rangata, who was neither the registered owner nor an administrator, offended sections 45 and 82 of the Law of Succession Act and was void ab initio
The vendor was selling his anticipated inheritance while the succession of Ruciami was ongoing, before confirmation of the grant, without LCB consent. Following the Court of Appeal and High Court precedents, such transactions are void and the purchaser's protection under section 93 is unavailable. The defendant's sole remedy was recovery of the purchase price, and he could not claim a lien from an unlawful transaction.
Whether the caution should be lifted and a permanent injunction issued against the defendant
Yes, but the removal of the caution was conditioned on the plaintiff refunding the proven purchase price of Kshs.50,240/=, which the court ordered to avoid unjust enrichment, and a permanent injunction was granted
The plaintiff is the registered owner and beneficiary of the estate whose father unlawfully sold the land and received Kshs.50,240/=. Allowing him both the land and the money would condone unjust enrichment, so refund was ordered within 3 months, with an inhibition pending payment, and the caution to be removed upon refund.
Legal principles established
#- A person who sells or intermeddles with free property of a deceased person without a grant or authority of law acquires no transferable interest, and such a sale is void ab initio
- No immovable property forming part of a deceased's estate may be sold before confirmation of the grant, and transactions conducted prior to confirmation of a grant are void ab initio, leaving the purchaser a remedy to recover consideration as a debt
Court orders
#- 1.An order directing the defendant to remove the caution placed against land parcel No. Mwimbi/N.Mugumango/1318, and in default the Executive Officer, Chuka Law Courts is empowered to sign all requisite documents to facilitate removal of the caution, but only after satisfying himself that the plaintiff has refunded Kshs.50,240/= to the defendant
- 2.The plaintiff to pay Kshs.50,240/= to the defendant within 3 months of the judgment, failing which the defendant may execute this order as if a judgment had been delivered that he owes the defendant that sum
- 3.The said Kshs.50,240/= shall attract interest at court rates from the date of the judgment
- 4.Pending payment of Kshs.50,240/=, the defendant is entitled to register an inhibition against Land Parcel No. Mwimbi/N.Mugumango/1318, with the Land Registrar, Chuka ordered to register it, and the Executive Officer authorised to sign documents removing the inhibition once payment is confirmed
- 5.A permanent injunction restraining the defendant, his agents, servants, assignees, employees or anybody acting on his behalf from trespassing, entering or cultivating the plaintiff's land parcel No. Mwimbi/N.Magumango/1218
- 6.Each party to bear their own costs
- Jurisdiction invoked
- Original civil jurisdiction of the High Court/Environment and Land Court over a claim for removal of a caution and permanent injunction relating to land parcel MWIMBI/N.MUGUMANGO/1318 (no specific constitutional or statutory provision invoked in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Linus Riungu M’kanga v Erastus Njagi Kamundi [2018] KEELC 146 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/146/eng@2018-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.