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ELCPartially AllowedMeru ELC Appeal (memorandum of appeal filed 20.9.2019, from Meru CMCC suit over parcel NKUENE/KITHUNGURI/663)· [2020] KEELC 1320 (KLR)

Juster Gatwiri Muriithi & another v Emmanuel Muchomba Kinoti [2020] KEELC 1320 (KLR)

Environment and Land Court
23 September 2020
2,844 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to force a land sale because the seller lacked authority and no land board consent was obtained; the buyer only got his money back.

What this practically means

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Executive summary

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The respondent sued the appellants in the trial court seeking specific performance of a sale agreement dated 13/4/2011 over one acre of parcel NKUENE/KITHUNGURI/663 and damages for breach. The trial magistrate decreed specific performance, ordered execution of transfers, awarded damages under clause 7 of the agreement and costs. On appeal, the Environment and Land Court, Meru (Lucy N. Mbugua, ELC Judge) re-evaluated the evidence as required of a first appellate court. It found that the agreement expressly acknowledged the pending Meru Succession Cause No. 114 of 1995 and that the 1st appellant, as a mere beneficiary, inter-meddled with the estate of the deceased contrary to Sections 45, 55 and 82(b) of the Law of Succession Act and had no locus standi to contract. The parcel 663 had been closed on subdivision in 1997 and the 1st appellant never held any registered or alienable interest; the respondent knew she was not the owner. The 2nd appellant was not party to the contract and, on privity, could not be bound. The transaction over agricultural land was void for want of land control board consent within six months under Sections 6 and 8(1) of the Land Control Act. The court held the only remedy was refund of the Kshs. 300,000 paid, recoverable as a debt under Section 7. The trial court's decision was set aside and substituted with an order for refund with interest at court rates running 30 days after judgment; each party was ordered to bear their own costs of the appeal and the trial court.

Key legal issues

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01

Inter-meddling with the estate of a deceased person

Holding

The sale agreement was an unlawful inter-meddling with the estate of the deceased and the 1st appellant had no locus standi to enter into it

Reasoning

The written agreement expressly acknowledged the ongoing Meru Succession Cause No. 114 of 1995 and was entered into on the footing that the 1st appellant was a beneficiary. Sections 45, 55 and 82(b) of the Law of Succession Act prohibit taking possession, disposal or sale of free property of a deceased person before confirmation of the grant. The appeal succeeded on this ground.

p. 3
02

Nature of the vendor's interest in the suit land

Holding

The 1st appellant was never the registered owner of parcel 663 or its resultant subdivisions and had no defined alienable interest

Reasoning

The green card showed parcel 663 was registered to Patrick Muriithi in 1993, transmitted to Robert Muturi and the 2nd appellant in 1996, and closed on partition into parcels 858 and 859 in 1997. By the time of the 2011 agreement the parcel no longer existed. The respondent knew the vendor was not the owner, so there was no concealment.

p. 3
03

Privity of contract

Holding

The 2nd appellant, not being a party to the agreement, could not be bound by it or be subjected to specific performance

Reasoning

The 2nd appellant did not execute the agreement of 13.4.2011 and was unaware of it. Applying Halsbury's principle as cited in Savings & Loan (K) Limited v Kanyenje Karangaita Gakombe, a contract binds only its parties. The familial relationship between the appellants gave the respondent no leverage to sue the 2nd appellant.

p. 3
04

Land Control Act consent

Holding

The transaction became null and void for want of land control board consent within six months, and the claim for specific performance could not stand

Reasoning

The agreement was made on 13/04/2011 and the suit was filed on 11/01/2018, long after the six-month period in Section 8(1) of the Land Control Act had lapsed without consent. Under Section 6 the transaction was void for all purposes, following Moses Kamande Nyambura v Francis Munyua Ngugi and Hirani Ngaithe Githire v Wanjiku Munge. The trial court therefore erred in granting specific performance.

p. 4
05

Available remedies

Holding

The respondent was entitled only to a refund of Kshs. 300,000 as a debt, not specific performance or damages

Reasoning

The contract being unenforceable, the trial court could not rewrite it for the parties. Section 7 of the Land Control Act makes money paid in a void controlled transaction recoverable as a debt from the person to whom it was paid. The acknowledgement receipt proved payment of Kshs. 300,000 to the 1st appellant.

p. 4

Legal principles established

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  • A person who deals with free property of a deceased person without express authority or a confirmed grant inter-meddles with the estate and has no locus standi to contract over it
  • A contract affects only the parties to it and cannot be enforced by or against a stranger to it, even if made for his benefit
  • A controlled transaction over agricultural land without land control board consent within six months is void for all purposes, and money paid in such a void transaction is recoverable as a debt under Section 7 of the Land Control Act
  • The court enforces the contract as agreed between the parties, not what the court thinks ought fairly to have been agreed

Court orders

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  1. 1.The decision of the trial court is set aside and substituted with an order of refund by the 1st appellant to the respondent in the sum of Kshs. 300,000 and interest at court rates, with interest running from 30 days after the date of delivery of the judgment
  2. 2.Each party shall bear their own costs of this appeal and costs before the trial court

Authorities

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Legislation

  • Law of Succession ActSection 45(1)
  • Law of Succession ActSection 55(1)
  • Law of Succession ActSection 82(b)(ii)
  • Land Control Act (Cap 302)Section 6(1)
  • Land Control Act (Cap 302)Section 8(1)
  • Land Control Act (Cap 302)Section 7
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (8)

  • Aineah Likuyani Njirah v Aga Khan Health Services
    [2013] eKLR
  • Reliable Electrical Engineering (k) Ltd vs Mantrac Kenya Limited
    (2006) eKLR
  • Selle–Vs- Associated Motor Boat Co. Limited
    1968 E.A. 123
  • Loise Wanjiru Irungu & 4 others v Joel Nthei Mwanzi & 6 others
    [2017] eKLR
  • Savings & Loan (K) Limited v Kanyenje Karangaita Gakombe & another
    [2015] eKLR
  • Moses Kamande Nyambura v Francis Munyua Ngugi
    [2018] eKLR
  • Hirani Ngaithe Githire V Wanjiku Munge
    [1979] Klr 50
  • Fina Bank Ltd Vs. Spares and Industries ltd
    [2000] 1EA 52
On appeal from
Chief Magistrate's Court (trial court, Meru)
not stated in judgment (plaint dated 23/1/2018, suit filed 11/01/2018)
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts (re-evaluation of trial evidence and decision)

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, "Juster Gatwiri Muriithi & another v Emmanuel Muchomba Kinoti [2020] KEELC 1320 (KLR)", Case Analysis (2020). Meru ELC Appeal (memorandum of appeal filed 20.9.2019, from Meru CMCC suit over parcel NKUENE/KITHUNGURI/663). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1320/eng@2020-09-23

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