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ELCDismissedKikuyu Senior Principal Magistrate's Court Civil Suit No. 302 of 2013 (Appeal)· [2020] KEELC 1787 (KLR)

James Nganga Karanja v Grace Mukami Ndungu &another; [2020] KEELC 1787 (KLR)

Environment and Land Court
9 July 2020
SOS. Okong'o
3,648 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to enforce a land sale made before a deceased person's estate grant was confirmed, leaving the buyer with only a refund.

What this practically means

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Executive summary

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This was a first appeal against the judgment of Hon. E. Michieka SRM in Kikuyu Senior Principal Magistrate's Court Civil Suit No. 302 of 2013 delivered on 23rd May 2016. The appellant had sued the 1st respondent for specific performance of a sale agreement dated 20th May 2010 over Dagoretti/Kinoo/2021, or alternatively compensation at market value, having paid Kshs 400,000 as purchase price to the 1st respondent as administrator of her deceased husband's estate. The lower court dismissed the claim, awarded a refund of Kshs 400,000 with interest, and allowed the 1st respondent's counter-claim declaring the agreement null and void and ordering the appellant to vacate the property. The appellant appealed on four grounds, contending the lower court ignored triable issues, evidence, market value and the 1st respondent's conduct. Okong'o J applied the established duty of a first appellate court to re-evaluate evidence and held that the agreement was null and void: the grant to the 1st respondent and her co-administrator Catherine Njoki Ndungu had not been confirmed when the agreement was made, and the co-administrator did not consent to the sale, breaching sections 55 and 82(b)(ii) of the Law of Succession Act. A void contract cannot attract specific performance. The court also held that the appellant's compensation claim failed because no evidence of market value or developments was tendered, the valuation report having been irregularly introduced through written submissions. The appeal was dismissed in its entirety with each party bearing its own costs of the appeal and the lower court suit.

Key legal issues

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01

Validity of a sale of estate property before confirmation of grant

Holding

The sale agreement was null and void as it breached section 55 of the Law of Succession Act and lacked the consent of the co-administrator

Reasoning

The suit property was registered in the name of the deceased's husband. The grant of letters of administration was issued to the 1st respondent and Catherine Njoki Ndungu jointly and had not been confirmed at the date of the agreement. Catherine did not consent to the sale and was not a party to the agreement. Section 55 barred sale before confirmation and joint administrators could not act alone.

p. 3
02

Whether specific performance could issue over a void contract

Holding

No; a void contract cannot be specifically enforced

Reasoning

The court, citing Chitty on Contract, held that the jurisdiction to order specific performance presupposes a valid enforceable contract. The agreement suffered from illegality and want of capacity, so the lower court rightly declined specific performance.

p. 3
03

Whether the appellant was entitled to market-value compensation

Holding

No; the claim failed for want of evidence

Reasoning

The appellant tendered no evidence of the market value of the property or the developments thereon. The valuation report was produced for the first time through written submissions, an irregular and unprocedural move which the lower court rightly rejected. The refund of Kshs 400,000 with interest was the fairest restitution.

p. 4

Legal principles established

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  • An administrator of a deceased's estate cannot sell estate property before confirmation of the grant, and joint administrators cannot act alone; a sale in breach thereof is void
  • Specific performance will not be ordered where the contract is void or unenforceable
  • On a first appeal the court must re-evaluate the evidence and draw its own conclusions while bearing in mind it did not hear the witnesses

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.Each party to bear its own costs of the appeal and of the lower court suit

Authorities

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Legislation

  • Law of Succession Act, Chapter 160 Laws of Kenyasection 55
  • Law of Succession Act, Chapter 160 Laws of Kenyasection 82(b)(ii)

Cases cited (5)

  • Gitanga Mwaniki & Another v. Annunciata Kibue
    [2013] eKLR
  • Verani t/a Kisumu Beach Resort v Phoenix of East Africa Assurance Co. Ltd
    [2004] 2 KLR 269
  • Selle v Associated Motor Boat Co. Ltd.
    [1968] E.A 123
  • Peter v Sunday Post Ltd.
    [1958] E.A 424
  • Makube v Nyamuro
    [1983] KLR 403
On appeal from
Kikuyu Senior Principal Magistrate's Court
Civil Suit No. 302 of 2013
Jurisdiction invoked
First appellate jurisdiction over an appeal from the Senior Principal Magistrate's Court (this being a first appeal)

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, "James Nganga Karanja v Grace Mukami Ndungu &another; [2020] KEELC 1787 (KLR)", Case Analysis (2020). Kikuyu Senior Principal Magistrate's Court Civil Suit No. 302 of 2013 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1787/eng@2020-07-09

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