Thomas Biwott & another v Willy K. Cherogony (sued as the Administrator of the Estate of Chepkwony Kibiwott Cherogony) & another [2018] KEELC 293 (KLR)
The bottom line
#A Kenyan court ruled that an estate administrator who registered inherited family land in his own name and sold part of it held it illegally, and must transfer it to the rightful beneficiaries.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to suit land per confirmed grant
The plaintiffs are entitled to the suit land as per the confirmed grant of letters of administration in Eldoret High Court P & A No. 4 of 2005.
The suit land belonged to the late Chepkwony Kibiwott Cherogony. The estate was distributed via a confirmed grant issued on 10th December 2010 giving each beneficiary a portion. The grant had not been revoked, so the distribution stands and the administrator was bound to implement it by transmission to each beneficiary.
Breach of administrator's duties under section 83 of the Law of Succession Act
The 1st defendant contravened his duties as administrator by registering himself as sole proprietor, subdividing and selling the estate land, rendering his title illegal and fraudulent.
As administrator the 1st defendant was under a duty to transfer portions to beneficiaries vide transmission but refused or neglected to do so, instead registering the parcels in his name and selling part to a third party. Registration of all parcels in his name was tainted with illegality, so the title deed is declared illegal and fraudulent and ordered cancelled.
Legal principles established
#- An administrator is under a duty to distribute/transmit estate land to beneficiaries per the confirmed grant; any action outside that distribution is null and void.
- Where a confirmed grant has not been revoked, its distribution scheme stands and must be adhered to.
Court orders
#- 1.A declaration that the title deed issued to the 1st defendant on 19th March 2013 is illegal and fraudulent
- 2.An order compelling the 1st Defendant to execute transfer forms by transmission in favour of the Plaintiffs in respect of Baringo/Kapropita/1517 arising from a sub-division of land parcel No. Baringo/Kapropita/994 as per their respective beneficial interests as ascertained in the certificate of confirmation of grant issued on 10th December 2010, failing which the Deputy Registrar of the court to execute the forms on his behalf
- 3.An order directed at the 2nd defendant for cancellation of the title deed issued to the 1st defendant on 19th March 2013 and rectification of the register and registration of the plaintiffs as registered owners by transmission of the whole of parcel Baringo/Kapropita/1517 measuring 4 acres and 6.7 acres respectively
- 4.Costs to be paid by the 1st defendant
- Jurisdiction invoked
- Original civil jurisdiction of the High Court (plaint dated 21st May 2015); matter proceeded by formal proof
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thomas Biwott & another v Willy K. Cherogony (sued as the Administrator of the Estate of Chepkwony Kibiwott Cherogony) & another [2018] KEELC 293 (KLR)", Case Analysis (2018). Eldoret High Court Civil Suit (plaint dated 21st May 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/293/eng@2018-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.