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ELCDismissedELC Civil Case No. 1113 of 2016 (OS)· [2019] KEELC 1542 (KLR)

George Ouma Okoth v Stephen Kiriba Kinoro; Charles Murathe Kibira & another (Interested Parties) [2019] KEELC 1542 (KLR)

Environment and Land Court
18 September 2019
1,169 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to transfer a Nairobi property because the 'seller' had died eight years before the sale agreement was signed.

What this practically means

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Executive summary

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This was an originating summons dated 9th September 2016 brought under Order 37 rule 3 of the Civil Procedure Rules and Section 3 of the Civil Procedure Act, in which George Ouma Okoth sought a vesting order for LR No. 7785/441 and an order compelling registration of the property in his name, on the basis that he purchased it from Stephen Kiriba Kinoro on 17th May 2014 for Kshs.5 million but the vendor refused to surrender the original title. The interested parties, beneficiaries of the defendant's estate, opposed the suit, producing a certificate of death showing that the defendant died on 14th February 2006, over eight years before the purported sale agreement, and that his estate had been administered in High Court Succession No. 1568 of 2009 and distributed equally among the beneficiaries by a certificate of confirmation of grant issued on 30th June 2016. The defendant himself never responded or attended court. The court framed five issues and found that the defendant could not have executed the agreement of 17th May 2014 as he was dead, that his signature was a forgery, and that the plaintiff adduced no evidence confirming that money exchanged hands. The plaintiff's reliance on Mumo Mutisya vs Donwoods Company Limited did not save his case. The court dismissed the originating summons with costs to the 1st and 2nd interested parties. Judgment was delivered on 18th September 2019 by L. Komingoi, Judge.

Key legal issues

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01

Existence of a valid sale agreement between the plaintiff and the defendant (deceased)

Holding

No valid sale agreement existed; the vendor's signature on the agreement was a forgery since he died over eight years before its purported execution

Reasoning

The court compared the certificate of death showing the defendant died on 14th February 2006 with the sale agreement executed on 17th May 2014, and the certificate of confirmation of grant distributing the estate. It concluded the defendant could not have executed the agreement and that his signature was a forgery.

p. 2
02

Proof of payment of the purchase price

Holding

The plaintiff failed to prove that the purchase price was actually paid

Reasoning

Although the plaintiff claimed to have paid Kshs.5 million, the court found no evidence confirming that money actually exchanged hands, undermining the claim of a completed sale entitling him to a vesting order.

p. 2
03

Entitlement to a vesting order under Order 37 rule 3

Holding

The plaintiff was not entitled to a vesting order as he failed to prove his case against the interested parties

Reasoning

Order 37 rule 3 permits a vendor or purchaser to seek determination of questions arising out of a contract of sale, but since the alleged contract was a forgery and the vendor was deceased with his estate duly distributed to beneficiaries, no vesting order could issue against the estate.

p. 2

Legal principles established

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  • A vesting order cannot issue where the alleged vendor was deceased at the time of the purported sale and the sale agreement appears to be a forgery

Court orders

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  1. 1.The originating summons dated 9th September 2016 is dismissed with costs to the 1st and 2nd interested parties

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 rule 3
  • Civil Procedure ActSection 3

Cases cited (1)

  • Mumo Mutisya vs Donwoods Company Limited
    [2016] eKLR
Jurisdiction invoked
Order 37 rule 3 of the Civil Procedure Rules and Section 3 of the Civil Procedure Act

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, "George Ouma Okoth v Stephen Kiriba Kinoro; Charles Murathe Kibira & another (Interested Parties) [2019] KEELC 1542 (KLR)", Case Analysis (2019). ELC Civil Case No. 1113 of 2016 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1542/eng@2019-09-18

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