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ELCDismissedEldoret High Court Civil Suit (as per amended plaint of 22nd July, 2013)· [2019] KEELC 2038 (KLR)

Peter Maingi Ndegwa & another v Moses Muiruri Ng’ang’a & 2 others [2019] KEELC 2038 (KLR)

Environment and Land Court
1 August 2019
AOA. Ombwayo
3,114 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A buyer who purchased land from a deceased person's estate without a court grant lost the land, because courts won't protect dealings with unconfirmed estates in Kenya.

What this practically means

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Executive summary

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The plaintiffs sued over parcel Eldoret Municipality Block 21 (King'ong'o) 2272, claiming the 1st plaintiff purchased it on 9th January 1990 from Rachael Wairimu Ng'ang'a, mother of the 1st defendant, under an agreement that it would be transferred to him upon completion of succession. Instead, the 1st defendant allegedly fraudulently had the land registered in his own name in 1998, sold it to Anthony Mwangi Ngare in 2002, from whom the 3rd defendant purchased it in 2003. The plaintiffs sought a declaration of ownership, cancellation of the transfer to the 3rd defendant, an injunction and costs. The 2nd defendant disclaimed any lasting interest, having been refunded his purchase money and having removed his caution. The 3rd defendant claimed to be a bona fide purchaser for value and raised the Limitation of Actions Act. The court found that Rachael Wairimu had no grant of letters of administration when she sold the land, which was still registered in the names of the Leleis, so the sale contravened sections 45 and 82 of the Law of Succession Act and amounted to intermeddling. The Land Control Board consent was given more than eight years after the agreement, without application copies or minutes, and the District Commissioner appeared to have influenced the transactions; the transfer was never registered. The court held the plaintiff failed to prove fraud against the 3rd defendant or his own ownership. The suit was dismissed with costs on 1st August 2019.

Key legal issues

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01

Capacity of a person without a grant of representation to sell land of a deceased person

Holding

The sale by Rachael Wairimu Ng'ang'a, who had no grant of letters of administration, was invalid as it contravened section 45 of the Law of Succession Act; the agreement of 9th January, 1990 conferred no rights on the plaintiff

Reasoning

The court found that at the time of sale the property was still registered in the names of the Leleis and Rachael Wairimu had no grant. Dealing with free property of a deceased person without authority constitutes intermeddling, an offence under section 45, and the estate cannot be dealt with without the sanction of the court. Authorities of Makau J, Murithi J and the Mburugu case were applied to the effect that such transactions are invalid and cannot be protected by the court.

p. 3
02

Whether the plaintiff proved fraud against the 3rd defendant

Holding

No fraud was proved against the 3rd defendant; the plaintiff did not discharge the burden of proving ownership and fraudulent acquisition of title by the defendants

Reasoning

The court observed that the documents produced by the plaintiff did not demonstrate fraud against the 3rd defendant. The burden of proving fraud rested on the plaintiff, and on the evidence the court found that burden not discharged. Irregularities in the plaintiff's own chain of transactions, including unregistered transfers and questionable Land Control Board consent procured over eight years after the agreement, undermined the claim of fraudulent dealing by the 3rd defendant.

p. 4
03

Irregularities in the Land Control Board consent

Holding

The consent allegedly issued on 5th November, 1998 came more than eight years after the 1990 agreement, contrary to the requirement that consent be obtained within six months, and there was no application copy or Board minutes; the District Commissioner appeared to have influenced the whole transaction

Reasoning

The court noted there was no copy of the application and no minutes of the 11th Meeting of the Land Control Board. Consent given more than eight years after the agreement was irregular. The District Commissioner signed the refund agreement, certified the transfer and signed the consent letter, suggesting influence. The transfer was never registered, so the plaintiff acquired no registrable interest.

p. 4

Legal principles established

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  • Before a grant of letters of administration has been issued and confirmed, no part of the estate of a deceased person may be dealt with by way of intermeddling, and any such transaction is subject to nullification by the court
  • Anyone who purports to purchase property from an estate before confirmation of a grant does so at his own peril
  • The burden of proving fraud lies on the party alleging it and must be discharged to the required standard

Court orders

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  1. 1.The suit is dismissed with costs

Authorities

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Legislation

  • Land Registration Actsection 76(1)
  • Land Registration Actsection 80(1)
  • Registered Land Act (repealed)section 143(1)
  • Law of Succession Act, Cap 160 Laws of Kenyasection 45
  • Law of Succession Act, Cap 160 Laws of Kenyasection 82
  • Limitation of Actions Actpleaded by the 3rd defendant

Cases cited (3)

  • Muriuki Hassan v. Rose Kanyua and 4 others
    [2014] eKLR
  • In Re Estate of John Gakunga Njoroge
    [2015] eKLR
  • Morris Mwiti Mburugu v. Denis Kimathi M'Mburugu
    [2016] e KLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to title to land (amended plaint of 22nd July, 2013)

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, "Peter Maingi Ndegwa & another v Moses Muiruri Ng’ang’a & 2 others [2019] KEELC 2038 (KLR)", Case Analysis (2019). Eldoret High Court Civil Suit (as per amended plaint of 22nd July, 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2038/eng@2019-08-01

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