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ELCAllowedMakueni ELC Case (plaint dated 26th July, 2016)· [2018] KEELC 3455 (KLR)

Grace Maundu Kilungya v Matheka Makuthi & another [2018] KEELC 3455 (KLR)

Environment and Land Court

10 April 2018

CMC.G Mbogo

2,500 words in judgment

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What this practically means

Executive summary

The plaintiff, an administrator of the estate of her late husband Maundu Kilungya, sued two defendants seeking a declaration that land parcel Nzaui/Kikumini/158 belongs solely to the deceased's estate and a permanent injunction against them. Her case was that Daniel Ndava Maundu, who became a joint administrator with her only in April 2016, sold portions of the land to the defendants before any grant was issued. The defendants contended they bought 7 and 2 acres respectively from Ndava as a beneficiary entitled to 17 acres, took possession as purchasers for value, and denied trespass. Daniel Ndava admitted selling the land without a grant of letters of administration and without knowing this was unlawful. The court noted the defendants knew from searches that the land was registered in the deceased's name and that no letter supporting Ndava's alleged 17-acre entitlement was produced. Relying on section 45(1), which prohibits intermeddling with a deceased's free property, and section 82(b)(ii), which prohibits sale of immovable property before confirmation of a grant, the court held that Ndava had no capacity to sell estate property absent a confirmed grant, that his acts and the defendants' amounted to intermeddling, and that the defendants could not claim purchaser-for-value status. The sale agreements were found to be of no probative value. Judgment was entered for the plaintiff in terms of prayers 1, 2 and 3 of the plaint, with costs and interest.

Key legal issues

Intermeddling with the free property of a deceased person

Holding

The sale of estate land by a beneficiary before a confirmed grant constitutes intermeddling contrary to section 45(1) of the Law of Succession Act.

Reasoning

Daniel Ndava Maundu sold portions of the suit land to the defendants in 2013, close to two years before he and the plaintiff were issued with letters of administration. He admitted he had no grant at the time of sale. In intestacy the deceased retains legal title until the grant is confirmed and the estate distributed, so the beneficiary acquired no legal title capable of transfer.

p. 3

Prohibition on sale of immovable property before confirmation of grant

Holding

Section 82(b)(ii) of the Law of Succession Act prohibits sale of immovable estate property before confirmation of the grant; the sale agreements were therefore of no probative value.

Reasoning

The court found the agreements were entered into before any grant existed and before confirmation. Ndava was not a personal representative at the material time, had no capacity to enter the agreements, and could not sell what he did not own. The agreements between Ndava and the two defendants were held to be of no probative value.

p. 4

Purchaser for value defence

Holding

The defendants could not rely on being purchasers for value where they knew the land was registered in the name of the deceased and the vendor lacked a grant.

Reasoning

The defendants admitted carrying out searches which showed the land was registered in the name of the deceased, Maundu Kilungya, and the first defendant acknowledged he knew it was an offence to intermeddle with deceased's property. No letter supporting Ndava's claimed entitlement to 17 acres was produced. Their claim to purchaser-for-value status therefore failed.

p. 2

Legal principles established

A beneficiary of a deceased's estate has no capacity to sell estate property before the grant of letters of administration is confirmed.
Except as authorized by law or a grant of representation, no person shall take possession of, dispose of, or otherwise intermeddle with the free property of a deceased person.
A purchaser from a person without capacity to sell estate land cannot claim to be a purchaser for value.

Court orders

1.A declaration that Nzaui/Kikumini/158 is the sole property of the estate of Maundu Kilungya
2.A permanent injunction restraining the defendants, their agents and servants from entering, encroaching, remaining, grazing or in any manner interfering with land parcel Nzaui/Kikumini/158
3.Costs of the suit and interest against the defendants

Authorities

Legislation

Law of Succession Actsection 45(1)
Law of Succession Actsection 82(b)(ii)

Cases cited (2)

re Estate of M'Ngarithi M'Muriti
[2017] eKLR
Benson Mutuma Muriungi Vs C.E.O Kenya Police Sacco & Another
[2016] eKLR

Jurisdiction invoked: Original civil jurisdiction of the Environment and Land Court over a dispute concerning land parcel Nzaui/Kikumini/158

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Grace Maundu Kilungya v Matheka Makuthi & another [2018] KEELC 3455 (KLR)", Case Analysis (2018). Makueni ELC Case (plaint dated 26th July, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3455/eng@2018-04-10

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