Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedElgeyo Marakwet ELC Case (Plaint dated 20th March, 2012)· [2020] KEELC 1263 (KLR)

John Chepkwony Chebii & Timothy Kiprotich Chebii [Both suing as administrators of the estate of the deceased - Chepkurui Keture] v Simon Chelang’a (Environment & Land Case 153 of 2013) [2020] KEELC 1263 (KLR)

Environment and Land Court
30 September 2020
2,177 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

A Kenyan court voided the sale of a dead man's land sold without succession papers, but gave the buyer 90 days to vacate without paying trespass damages.

What this practically means

#

Executive summary

#
The Plaintiffs, administrators ad litem of the estate of Chepkurui Keture (deceased 18th July 1978, registered owner of Elgeyo Marakwet/Kapsowar/394), sued for permanent injunction, eviction and a refund of Kshs.130,000, alleging the Defendant trespassed onto half an acre of the suit land after buying it from David Boit. The Defendant denied the Plaintiffs' capacity and the trespass, asserting he had bought portions from family members. The court framed four issues: enforceability of the sale agreement, trespass, eviction and injunction, and costs. It held the Plaintiffs had capacity to sue under the unchallenged limited grant. The land remained registered in the deceased's name and no succession had been done; under Sections 2 and 45 of the Law of Succession Act, the vendor's sale of the deceased's land without a grant was void ab initio and conferred no proprietary rights, the Land Control Act also not having been complied with. However, the Defendant's entry was not trespass since he paid the purchase price believing the vendor had capacity, as with his other purchases from the deceased's grandchildren. The trespass claim failed, and no order was made on compensation for developments for want of a counterclaim or valuation. Judgment was entered for the Plaintiffs: the sale agreement was declared void, the Defendant was ordered to give vacant possession within 90 days or face eviction, and was permanently injuncted from the portion. Each party was ordered to bear their own costs, given the vendor's role and the unchallenged other transactions.

Key legal issues

#
01

Capacity of the Plaintiffs to sue

Holding

The Plaintiffs, holding letters of administration ad litem issued on 29th February 2012, had capacity to file and prosecute the suit on behalf of the estate

Reasoning

The limited grant was produced without objection and was never challenged before the succession court or on appeal. The suit was filed less than a month after issuance of the grant. The Defendant's bare denial in the defence was insufficient to displace the grant's validity, so the Plaintiffs could sue in the name of the estate.

p. 2
02

Enforceability of the sale agreement of 5th August 2011

Holding

The agreement was void ab initio because the vendor was not an administrator and held no confirmed grant over land registered in the deceased's name

Reasoning

The suit land remained registered in the name of Chepkurui Keture, who died in 1978, and no succession had been done when the sale occurred. David Boit was neither administrator nor grant-holder. Sections 2 and 45 of the Law of Succession Act outlaw disposal or intermeddling with a deceased's property, and the Land Control Act was also not complied with, rendering the agreement void.

p. 2
03

Whether the Defendant was a trespasser

Holding

The Defendant's entry onto the land did not amount to trespass since he paid the purchase price in the bona fide belief that the vendor had capacity to sell

Reasoning

The Defendant had bought three portions under separate agreements, two from grandchildren of the deceased, and paid Kshs.130,000 believing David Boit could sell. His possession was founded on a sale agreement, albeit void, not on forcible or unauthorised entry. The trespass claim therefore failed even though the sale was void.

p. 2
04

Eviction and permanent injunction

Holding

Granted: the Defendant to give vacant possession within 90 days or be evicted, and to remain permanently injuncted from the portion

Reasoning

Since the basis of the Defendant's possession was declared void ab initio, he had no lawful basis to remain on the portion. The court ordered vacant possession within 90 days, failing which lawful eviction, together with a permanent injunction against interference with the portion without the administrators' consent.

p. 3

Legal principles established

#
  • A person who is not an administrator of a deceased's estate and does not hold a confirmed grant cannot validly sell land registered in the name of the deceased; such a sale is void ab initio
  • Sections 2 and 45 of the Law of Succession Act outlaw intermeddling with a deceased person's property without a grant of representation
  • A plaintiff holding letters of administration ad litem has capacity to sue on behalf of the estate unless that appointment is successfully challenged

Court orders

#
  1. 1.Declaration that the sale agreement under which the Defendant bought half acre of Elgeyo Marakwet/Kapsowar/394 from David Boit on the 2nd August, 2011 was void ab initio for non-compliance with the Law of Succession Act and Land Control Act
  2. 2.Defendant ordered to give vacant possession of the said portion of land to the estate of the deceased within 90 days or be evicted in accordance with the law
  3. 3.Upon giving vacant possession or eviction, the Defendant permanently injuncted from interfering with that portion of the suit land without the permission or consent of the administrators of the estate
  4. 4.Each party to bear their own costs in the suit

Authorities

#

Legislation

  • Law of Succession ActSections 2 and 45
  • Land Control ActChapter 302 (generally)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit land Elgeyo Marakwet/Kapsowar/394; plaintiffs suable as holders of limited grant of letters of administration ad litem

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "John Chepkwony Chebii & Timothy Kiprotich Chebii [Both suing as administrators of the estate of the deceased - Chepkurui Keture] v Simon Chelang’a (Environment & Land Case 153 of 2013) [2020] KEELC 1263 (KLR)", Case Analysis (2020). Elgeyo Marakwet ELC Case (Plaint dated 20th March, 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1263/eng@2020-09-30

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