Mary Watiri Mwangi (Suing as the legal Representative of the Estate of Kiburio Kamutu) v Timothy Kimani Kiburio & 3 others [2018] KEELC 1426 (KLR)

The deceased died on 10th October 2011 while registered proprietor of parcels 1007 and 1008. The registers were closed on 14th December 2011 upon subdivision and the resultant parcels registered to the Defendants without any grant of letters of administration. Section 55 of the Law of Succession Act prohibits distribution of capital assets before confirmation of a grant. The Defendants adduced no documentary evidence of valid transfer, so the registrations were a nullity and the estate remained proprietor.

The defence relied on witness testimony that the deceased instructed a surveyor in 2008, executed mutation forms and conducted a 'Gitoka' ceremony. However, on cross-examination DW2 confirmed the deceased's signature was missing on the mutation forms and no Land Control Board consent or minutes existed. The mutation exhibit was thus displaced. Without documentary proof of the alleged transactions, the court preferred the Plaintiff's evidence.

Section 6(1) of the Land Control Act renders the division of agricultural land within a land control area void for all purposes absent the board's consent. Section 6(3) declares unauthorised controlled transactions null and void. The Plaintiff confirmed in cross-examination that neither the deceased nor the Defendants had gone to the Land Control Board for consent, and no minutes or consent documents were produced by the defence. The court applied the Court of Appeal's holding that the Act's provisions are imperative.