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ELCPartially AllowedMakueni ELC Civil Suit (Plaintiff's plaint dated 18th January, 2017)· [2018] KEELC 3009 (KLR)

John Mutava Masika v Benson Nzangi Mutiso [2018] KEELC 3009 (KLR)

Environment and Land Court
3 May 2018
1,709 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court voided a land sale made without Land Control Board consent and before succession was completed, ordering a refund but no costs.

What this practically means

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Executive summary

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The Plaintiff sued by plaint dated 18th January 2017 seeking an order compelling the Defendant to accept Kshs. 230,000, a permanent injunction restraining the Defendant from land parcel Nzaui/Mumbuni/578, costs and any other relief. He claimed the money was a loan of Kshs. 115,000 advanced in four tranches under four agreements, refundable to the Defendant. The Defendant denied the claim, asserting he had purchased two acres of the land for Kshs. 70,000 by an agreement of 24th July 2004, with subsequent purchases. Four witnesses testified for the Plaintiff and two for the Defendant; the agreements themselves were produced by the Defendant. The Plaintiff's own witnesses confirmed the documents evidenced a sale of land belonging to the Plaintiff's late father, Masila Ndolo, who had not yet transmitted his estate. The court framed two issues: the validity of the sale agreements and whether selling a deceased's property before a succession cause is filed offends section 45(1) of the Law of Succession Act. Holding that no Land Control Board consent was sought within six months under section 8(1) of the Land Control Act, and that the Plaintiff held no grant, the court found the agreements void and both parties' conduct to be intermeddling with a deceased person's free property. Judgment was entered for the Plaintiff on prayers (a) and (b) - refund of Kshs. 230,000 and permanent injunction - but since both parties willingly intermeddled, each party was ordered to bear his own costs.

Key legal issues

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01

Validity of the sale agreements

Holding

The agreements are void for want of Land Control Board consent within the statutory six months

Reasoning

The parties never applied to the Land Control Board within six months of making the agreements as required by section 8(1) of the Land Control Act, nor did either approach the High Court to extend that period. The agreements therefore fall foul of the statute and are void, quite apart from the fact that the land belonged to a deceased person whose estate had not been transmitted to the Plaintiff.

p. 2
02

Intermeddling with a deceased person's property

Holding

Both the Plaintiff's sale and the Defendant's taking of possession amounted to intermeddling under section 45 of the Law of Succession Act

Reasoning

The Plaintiff was not a personal representative and held no grant; the land belonged to his late father. Section 45(1) bars taking possession or disposing of free property of a deceased person without authority. The Plaintiff's purported sale and the Defendant's occupation were intermeddling, a serious offence, rendering the transaction offensive and entitling the Defendant to a refund.

p. 2
03

Entitlement to refund

Holding

The Defendant is entitled to a refund of Kshs. 230,000 as prayed

Reasoning

The Defendant admitted in paragraph 3 of his defence the averments in paragraph 6 of the plaint regarding refund. Although he alluded to fraud, no particulars of fraud were particularised in the defence, so the refund claim stood uncontroverted and the court entered judgment for the Plaintiff in terms of prayers (a) and (b).

p. 3

Legal principles established

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  • Sale of land in a land control area without Land Control Board consent within six months renders the agreement void
  • A person who is not a personal representative cannot sell a deceased's free property; sale and taking possession amount to intermeddling under section 45 of the Law of Succession Act

Court orders

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  1. 1.Judgment entered for the Plaintiff and against the Defendant in terms of prayers (a) and (b) of the plaint
  2. 2.The Defendant compelled to receive Kshs. 230,000 refund
  3. 3.Permanent injunction restraining the Defendant from the land parcel Nzaui/Mumbuni/578
  4. 4.Each party to bear his own costs

Authorities

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Legislation

  • Land Control Actsection 8(1)
  • Law of Succession Actsection 45(1)

Cases cited (2)

  • RE ESTATE OF M'NGARITHI M'MIRITI
    [2017] EKLR
  • BENSON MUTUNGI MURIUNGI VS CEO OF KENYA POLICE SACCO & ANOTHER
    [2016] eKLR
Jurisdiction invoked
Original civil suit on a plaint seeking refund of purchase price and eviction from land parcel Nzaui/Mumbuni/578

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "John Mutava Masika v Benson Nzangi Mutiso [2018] KEELC 3009 (KLR)", Case Analysis (2018). Makueni ELC Civil Suit (Plaintiff's plaint dated 18th January, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3009/eng@2018-05-03

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