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ELCPartially AllowedKericho ELC Civil Suit (Plaint dated 17th March 2016)· [2018] KEELC 2617 (KLR)

Leonard Kiplangat & another v Samuel Rotich & 9 others [2018] KEELC 2617 (KLR)

Environment and Land Court
27 June 2018
JOJ. M Onyango
1,861 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Land bought from a deceased person's family without a court grant and Land Control Board consent is legally worthless, and buyers can lose everything.

What this practically means

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Executive summary

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The plaintiffs, represented by the 1st plaintiff holding a limited grant ad litem as grandson of the late Chepkwony Arap Munyai, sued ten defendants for trespass on land parcel KERICHO/KABARTEGAN/565, registered in the deceased's name. The defendants admitted purchasing portions from the plaintiffs' uncles between 1995 and 2013, taking possession and making developments, but conceded that at the time of sale the registered owner was dead and no grant of letters of administration had been taken out. They counterclaimed for an injunction protecting their occupation. The court framed four issues: validity of the sale agreements, the plaintiffs' reliefs, the defendants' counterclaim, and costs. Holding that section 45 of the Law of Succession Act forbids any dealing with a deceased person's free property before a grant issues, the court found the uncles had no capacity to sell and were guilty of intermeddling, so the status quo at death had to be maintained. Additionally, the defendants never obtained Land Control Board consent within six months as required by section 6(1) of the Land Control Act, rendering the sales void for all purposes; applying Macfoy v United Africa Co., the court held void acts are incurable nullities. The counterclaim was dismissed with costs, the plaintiffs' claim was proved on a balance of probabilities, and the court declared the parcel belongs to the deceased's estate, permanently restrained the defendants from re-entering or interfering, and awarded costs to the plaintiffs jointly and severally against the defendants.

Key legal issues

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01

Capacity of beneficiaries to sell deceased's registered land before grant

Holding

The sale agreements were invalid because the sellers had no grant of letters of administration and were guilty of intermeddling under section 45 of the Law of Succession Act.

Reasoning

Section 45 prohibits any person from taking possession of or disposing of free property of a deceased person except under a grant of representation. The court held this provision goes to the root of validity, requiring the status quo at death to be maintained until a grant issues. Since the uncles sold before obtaining a grant, the sales were acts of intermeddling and nullities.

p. 3
02

Effect of absence of Land Control Board consent

Holding

The transactions were void for all purposes under section 6(1) of the Land Control Act for want of consent within six months.

Reasoning

Section 6(1) renders any sale, transfer or other dealing with agricultural land in a land control area void for all purposes unless the relevant Land Control Board consents. None of the defendants obtained consent. Relying on Macfoy v United Africa Co., the court held that a void act is a nullity, incurably bad, and incapable of enforcement without more.

p. 3
03

Whether plaintiffs proved their claim to the suit property

Holding

The plaintiffs proved their case on a balance of probabilities and obtained declaration and permanent injunction.

Reasoning

The suit property was registered in the name of the deceased grandfather, who died in 1975 with no sub-division. The 1st plaintiff held a limited grant ad litem and represented the estate. Having established the defendants' sales were void, the plaintiffs were entitled to the declaration and a permanent injunction restraining re-entry or interference.

p. 3

Legal principles established

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  • No person may sell or dispose of free property of a deceased person before a grant of representation is issued; such a sale is intermeddling and void.
  • A transaction on agricultural land without Land Control Board consent within six months is void for all purposes and incurably bad.

Court orders

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  1. 1.A declaration that land parcel number KERICHO/KABARTEGAN/565 is the property of Chepkwony Arap Munayi – deceased and should devolve to his lawful beneficiaries
  2. 2.The defendants have no lawful claim to any part of land parcel number KERICHO/KABARTEGAN/565 and having vacated the same, are permanently restrained from re-entering therein or interfering with the plaintiffs' quiet use, possession and occupation thereof
  3. 3.The costs of the suit and the Counterclaim shall be borne by the defendants jointly and severally

Authorities

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Legislation

  • Law of Succession Actsection 45
  • Land Control Act Cap 302section 6(1)
  • Land Actsection 38

Cases cited (2)

  • Mcfoy V United Africa Co. Ltd
    1967 3 ALL ER 1169
  • Leonard Njonjo Kariuki V Njoroge Kariuki
    Nbi Civil Appeal No. 26 of 1079
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Leonard Kiplangat & another v Samuel Rotich & 9 others [2018] KEELC 2617 (KLR)", Case Analysis (2018). Kericho ELC Civil Suit (Plaint dated 17th March 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2617/eng@2018-06-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.