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ELCPartially AllowedELC Case No. 113 of 2014· [2019] KEELC 2476 (KLR)

Mary Njeri Mugo v Jane Wakini Gatimu & another [2019] KEELC 2476 (KLR)

Environment and Land Court
14 June 2019
2,202 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A widow who sold land she inherited before getting letters of administration lost everything: the court cancelled the buyer's title and ordered her to refund the purchase money.

What this practically means

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Executive summary

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In this Environment and Land Court suit at Kerugoya, the plaintiff, a widow, sought reversion of L.R. MUTIRA/KAGUYU/2948 to its position as at 9.4.2014, a declaration that a 30.1.2013 agreement with the 2nd defendant was null and void, compensation for destroyed property, and costs. The defendants filed separate amended defences and counterclaims. The evidence showed the plaintiff sold a 0.20 Ha portion to the 2nd defendant in January 2013 while the land was still registered in the name of her deceased husband, Benson Mugo Karuga, before any grant of letters of administration in Succession Cause No. 294 of 2013. The property was then registered jointly in the plaintiff's and 2nd defendant's names, and in April 2014 they sold the whole parcel to the 1st defendant for Ksh.1,650,000/=, which was paid and shared (Ksh.700,000/= to the plaintiff, Ksh.950,000/= to the 2nd defendant), with a Land Control Board consent obtained and a transfer registered. The court framed seven issues and held that the 2013 sale was illegal and irregular for want of letters of administration; that the resulting joint registration and title enjoyed no legal sanctity; that no good title was passed to the 1st defendant; and that the vendors received the purchase price, giving the 1st defendant a reasonable cause of action. The court cancelled the 1st defendant's title, reverted the land to the original proprietor (named in the orders as DANSON MUGO), declared the 2013 agreements null and void, gave the 1st defendant six months to vacate, ordered the plaintiff and 2nd defendant to refund Ksh.1,650,000/= with interest from 24.04.2014, and awarded costs against them jointly and severally. No cases or statutes were cited in the judgment.

Key legal issues

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01

Capacity to deal with land registered in the name of a deceased person before grant of letters of administration

Holding

The sale agreement of 30.1.2013 between the plaintiff and the 2nd defendant was illegal, null and void because the suit property was still registered in the name of the deceased husband and no letters of administration had been issued

Reasoning

The court held that at the time of the 2013 sale the property was still registered in the name of Benson Mugo Karuga (deceased) and no letters of administration had been issued. Without a grant, the plaintiff lacked the legal capacity to dispose of any interest in her deceased husband's estate, rendering the transaction and the subsequent joint registration irregular and incapable of conferring a protected title.

p. 3
02

Indefeasibility of title acquired through an illegal transaction

Holding

Registration of the plaintiff and 2nd defendant as joint proprietors was tainted with illegality and the title so acquired was not indefeasible and could not be protected by the court

Reasoning

Since the root of the plaintiff's and 2nd defendant's title was the void 2013 agreement, the subsequent registration as joint proprietors could not enjoy legal sanctity. A title arising from illegality is not a clean title capable of protection, and consequently the downstream sale to the 1st defendant, being founded on that defective title, was equally not binding in law.

p. 3
03

Liability of vendors to refund purchase price where title conveyed fails

Holding

Both the plaintiff and the 2nd defendant received the Ksh.1,650,000/= purchase price and were jointly ordered to refund it with interest at court rates

Reasoning

The evidence of the 1st defendant and her witnesses, including the advocate who prepared and explained the 28.4.2014 agreement, established that the purchase price of Ksh.1,650,000/= was paid and shared between the vendors (Ksh.700,000/= to the plaintiff and Ksh.950,000/= to the 2nd defendant). Having received consideration for a sale that was void, both were ordered to refund with interest from 24.04.2014.

p. 3

Legal principles established

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  • A party without letters of administration has no capacity to sell any interest in the estate of a deceased person
  • Title arising from an illegal or irregular transaction does not enjoy legal sanctity and cannot be protected by the court
  • One cannot pass a good title that one never validly acquired - nemo dat quod non habet

Court orders

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  1. 1.The suit property L.R MUTIRA/KAGUYU/2948 registered in the name of the 1st defendant be and is hereby cancelled and the same reverted back to the original proprietor DANSON MUGO
  2. 2.The agreements dated 30.1.2013 entered between the plaintiff and the 2nd defendant be and is hereby declared illegal, null and void
  3. 3.The 1st defendant, his agents and/or servants are given six (6) months to vacate from the suit property No. MUTIRA/KAGUYU/2948 failing which she shall be evicted
  4. 4.The plaintiff and the 2nd defendant are hereby ordered to pay the 1st defendant's consideration/purchase price of Ksh.1,650,000/= plus interest at Court rates from 24.04.2014 until payment in full
  5. 5.The costs of this suit shall be borne by the plaintiff and the 2nd defendant jointly and severally
Jurisdiction invoked
Environment and Land Court original jurisdiction over land disputes

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, "Mary Njeri Mugo v Jane Wakini Gatimu & another [2019] KEELC 2476 (KLR)", Case Analysis (2019). ELC Case No. 113 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2476/eng@2019-06-14

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