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ELCPartially AllowedELC Case No. 69 of 2014· [2020] KEELC 2796 (KLR)

Sarah Jelangat Sieley v Reuben Kipngeno Sang & 3 others [2020] KEELC 2796 (KLR)

Environment and Land Court
29 April 2020
2,404 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court ordered buyers off inherited land because you cannot lawfully buy a deceased person's property in Kenya before succession is confirmed.

What this practically means

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Executive summary

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The plaintiff, as legal representative of the estate of Azaria Kipsiele Chepkwony, sued four defendants for unlawfully encroaching on and taking possession of land parcel Kericho/Silibwet/664, seeking their eviction, costs and interest. The defendants jointly denied the claim and counterclaimed, pleading that they had purchased their respective portions from beneficiaries (grandchildren) of the deceased registered owner and asking for orders compelling the plaintiff to transfer those portions to them. At trial, the plaintiff's attorney testified that the sellers were grandchildren of the deceased who had sold before succession was completed; the defendants produced sale agreements and admitted knowledge that the sellers had no titles and that succession had not been done. The plaintiff argued that Sections 82(b) and 45(1) of the Law of Succession Act prohibit pre-confirmation sales and intermeddling, while the defendants invoked Section 93 as protecting purchasers. The court held Section 93 inapplicable because it protects only transfers made by a personal representative under a grant later revoked; here no transfer had occurred and the sellers were not legal representatives. The pre-confirmation sales were invalid and amounted to intermeddling. The plaintiff's claim was proved on a balance of probabilities: the court granted prayer (a) of the plaint, ordering the defendants' eviction, and dismissed the counterclaim. Noting the plaintiff's own prolonged failure to distribute the estate, the court ordered each party to bear its own costs.

Key legal issues

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01

Validity of pre-confirmation sales by beneficiaries

Holding

The sales were invalid as the sellers were beneficiaries, not legal representatives, and the sales preceded confirmation of grant in 2013

Reasoning

The court held that under Section 82(b)(ii) of the Law of Succession Act no immovable property shall be sold before confirmation of grant. The beneficiaries who sold portions to the defendants had no legal capacity to transact, and the defendants, who knew no titles existed and succession was incomplete, acquired no enforceable interest. The purchasers should have sought inclusion in the succession proceedings but did not.

p. 3
02

Applicability of Section 93 of the Law of Succession Act

Holding

Section 93 does not protect the defendants because it applies only to transfers by a holder of a grant later revoked

Reasoning

The court read the section contextually, noting its side note concerns validity of transfers not affected by revocation of representation. It presupposes a transfer by a personal representative pursuant to a grant. Here no transfer had occurred and the sellers were not legal representatives, so the defendants derive no benefit from the provision.

p. 3
03

Intermeddling with the estate

Holding

The selling beneficiaries intermeddled contrary to Section 45(1) of the Law of Succession Act

Reasoning

By disposing of free property of the deceased without authority of a grant or written law, the grandchildren wittingly or unwittingly intermeddled, offending Section 45(1). The authorities cited by the plaintiff, including the estates of Kaburu Marete and Kakua Kioko, spelled out the same legal position and applied to the matter.

p. 3
04

Plaintiff's entitlement to eviction and the counterclaim

Holding

The plaintiff's claim was proved on a balance of probabilities and the counterclaim failed

Reasoning

The court found merit on the plaintiff's side and granted prayer (a) of the plaint, ordering eviction. The counterclaim for compulsory transfer of portions had no legal foundation given the invalidity of the underlying sales. Nonetheless the court tempered the outcome on costs, blaming the plaintiff's prolonged failure to distribute the estate.

p. 3

Legal principles established

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  • No immovable property forming part of a deceased's estate may be sold before confirmation of grant
  • Sale of estate property by beneficiaries before grant confirmation constitutes intermeddling under Section 45(1) of the Law of Succession Act
  • Section 93 of the Law of Succession Act protects only transfers made by a personal representative under a grant subsequently revoked, not sales by beneficiaries

Court orders

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  1. 1.An order of eviction against the defendants, their agents, servants and employees from L.R. No. Kericho/Silibwet/664 (prayer (a) in the plaint granted)
  2. 2.Dismissal of the defendants' counterclaim
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Law of Succession Act (Cap 160)Section 82(b)(ii)
  • Law of Succession Act (Cap 160)Section 45(1)
  • Law of Succession Act (Cap 160)Section 93(1) and (2)

Cases cited (5)

  • In the matter of the Estate of Isaac Kaburu Marete
    Succession Cause No. 7 of 2011
  • In the matter of the Estate of Kakua Kioko (deceased)
    Succession Cause No. 54 of 2010
  • Meclina Kirigo M'Murithiu v Mary Gantukusi Mukiri & 2 Others
    (2016) eKLR, Meru HCC Succession Cause No. 499 of 2010
  • In the matter of the estate of M' Thuranira M' Mwereria (deceased)
    HCC Succession Cause No. 5 of 2015
  • In the matter of the estate of John Gakunga Njoroge (deceased)
    HCC Succession Cause No. 256 of 2007
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (land dispute; suit for eviction from land parcel Kericho/Silibwet/664)

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, "Sarah Jelangat Sieley v Reuben Kipngeno Sang & 3 others [2020] KEELC 2796 (KLR)", Case Analysis (2020). ELC Case No. 69 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2796/eng@2020-04-29

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