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ELCPartially AllowedNot stated in judgment (Plaint dated 30th June 2015 as amended on 27th April 2016)· [2020] KEELC 2067 (KLR)

Francesca Regaiolli v Peter Nyiro Mganga & another [2020] KEELC 2067 (KLR)

Environment and Land Court
17 June 2020
6,715 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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A Malindi court confirmed that a validly sold house cannot be re-gifted through a later will, and unproven fraud claims fail.

What this practically means

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Executive summary

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The Plaintiff, an Italian resident of Malindi, sued the 1st Defendant (caretaker of the suit property) and the 2nd Defendant (executor of the estate of the late Monique Grignon) seeking a permanent injunction and a declaration that she is the legal owner of House No. Q7 on Land Portion No. 587, Malindi, having purchased it from the deceased on 27th December 2014 for Kshs 5,000,000 and had the transfer registered on 9th February 2015. The 1st Defendant denied the sale, alleged the transfer was procured by fraud, claimed the deceased bequeathed the property to him by a Will dated 25th February 2015, and counterclaimed for possession, return of documents and cash, rent arrears and an injunction. The 2nd Defendant denied any consideration was paid and asserted the transfer was irregular. The court found the deceased executed the transfer in the presence of her advocate, that there was no evidence she lacked mental capacity - she revoked a power of attorney and made a new will some sixty days after the transfer - and that no fraud was specifically pleaded or strictly proved. Relying on Section 23 of the Law of Succession Act and the doctrine of ademption, the court held the property, having been sold before the Will, was not capable of bequest to the 1st Defendant. Judgment was entered for the Plaintiff as prayed, the Counterclaim dismissed, with costs to the Plaintiff for both the suit and the Counterclaim.

Key legal issues

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01

Mental capacity of the deceased to execute the transfer

Holding

No evidence suggested the deceased lacked mental capacity; the presumption of soundness of mind was not rebutted

Reasoning

The court applied the presumption that every person is of sound mind until proved otherwise, with the burden on the party asserting incapacity. The deceased revoked a power of attorney and made a new will barely sixty days after the transfer, showing she was in charge of her faculties. She made no police complaint, attempted no reversal, and placed no caveat on the property, so the coercion and incapacity argument failed.

p. 7
02

Alleged fraud in the transfer

Holding

The fraud allegation failed as it was not specifically pleaded and was not strictly proved

Reasoning

The court noted there was no claim of fraud in the Defendants' pleadings nor any attempt to prove it, relying on authority that fraud must be specifically pleaded and strictly proved to a standard above balance of probabilities. The 2nd Defendant's account that the deceased 'stupidly' signed documents was hearsay of her impression and no fraud was ever reported to the Police.

p. 7
03

Whether the suit property was capable of bequest under the Will of 25th February 2015

Holding

The property having been sold and transferred before the Will, the bequest to the 1st Defendant failed under the doctrine of ademption under Section 23 of the Law of Succession Act

Reasoning

The court found the property was transferred on 27th December 2014 (registered 9th February 2015), before the Will of 25th February 2015. A testator cannot bequeath what he does not own; the bequest of the suit property to the 1st Defendant was therefore ineffectual and the property was no longer capable of passing by bequest.

p. 8

Legal principles established

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  • There is a presumption of soundness of mind and the burden of proving incapacity lies on the person asserting it
  • Allegations of fraud must be specifically pleaded and strictly proved; a general or bare denial is insufficient
  • Under the doctrine of ademption, a testator cannot bequeath property he no longer owns

Court orders

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  1. 1.Judgment entered for the Plaintiff as prayed in the Plaint
  2. 2.The 1st Defendant's Counterclaim dismissed
  3. 3.The Plaintiff awarded the costs of both her suit and the 1st Defendant's Counterclaim

Authorities

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Legislation

  • Law of Succession ActSection 23

Cases cited (6)

  • Grace Wanjiru Munyinyi & Another –vs- Gedion Waweru Githunguri & 5 Others
    (2011) eKLR
  • John Patrick Machira –vs- Patrick Kahiaru Muturi
    (2002) eKLR
  • Bruce Joseph –vs- Coquero Ltd
    (2014) eKLR
  • Koinange & 13 Others –vs- Koinange
    (1968) KLR 23
  • Westmont Power (Kenya) Ltd –vs- Westmont Power (Kenya) Ltd
    (2003) eKLR
  • Ellen Nyatetu & Another –vs- Danson Weru & 7 Others
    (2017) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over ownership of House No. Q7 on Land Portion No. 587 Malindi (no specific provision cited in the judgment)

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, "Francesca Regaiolli v Peter Nyiro Mganga & another [2020] KEELC 2067 (KLR)", Case Analysis (2020). Not stated in judgment (Plaint dated 30th June 2015 as amended on 27th April 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2067/eng@2020-06-17

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