Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (Machakos Environment and Land Court plaint dated 4th December 2017)· [2020] KEELC 3060 (KLR)

Elizabeth Gatwiri Mbaya & 2 others v Jane Syombua Kyalo & 5 others [2020] KEELC 3060 (KLR)

Environment and Land Court
24 April 2020
OAO.A. Angote
2,390 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

The court threw out land buyers' claim because you cannot legally buy a deceased person's land in Kenya before the estate is formally distributed.

What this practically means

#

Executive summary

#
The Plaintiffs, purchasers of portions of land comprised in Donyo Sabuk/Komarock Block 1/526, sued the beneficiaries and administrators of the Estate of the late Kisuvi Wambua and the Land Registrar. They sought declarations that title deeds issued in 2013 and 2017 in favour of the 4th and 5th Defendants were null and void, declarations of proprietary interest, specific performance compelling transfer of two acres to the 1st and 2nd Plaintiffs jointly and two acres to the 3rd Plaintiff, and orders directing the 6th Defendant to register transmission forms and effect transfers. The Plaintiffs' case was that they paid the full purchase price under agreements dated 20th October, 2008, 23rd May, 2009 and 24th June, 2009, and were to be transferred the land upon conclusion of Machakos High Court Succession Cause No. 659 of 2010. The Defendants did not testify. The court examined the agreements and found that the agreements dated 23rd May and 24th June, 2009 each covered only one acre, while the 2008 agreement covered two acres. On the evidence, the persons who purportedly sold the land were not registered as proprietors of any portion, and no Certificate of Confirmation showed how the estate had been distributed. The court held that the agreements were illegal and unenforceable because they purported to dispose of a deceased person's free property before distribution of the estate, contrary to Section 45 of the Law of Succession Act. Since specific performance requires a valid and enforceable contract, no such order could issue. The suit was dismissed with no order as to costs.

Key legal issues

#
01

Enforceability of agreements selling a deceased person's land before distribution of the estate

Holding

The sale agreements were illegal and unenforceable as they contravened Section 45 of the Law of Succession Act

Reasoning

The Plaintiffs purported to purchase land belonging to a deceased person before his estate was distributed by the court. Section 45 prohibits any person from taking possession of or disposing of free property of a deceased person except as authorised by a grant of representation. Contracts entered in contravention of this provision are tainted with illegality and cannot found an order of specific performance.

p. 3
02

Whether specific performance could issue

Holding

Specific performance was refused because the underlying contracts were invalid and the vendors were not registered proprietors of any portion of the suit land

Reasoning

Specific performance requires a valid and enforceable contract. The agreements were illegal under Section 45 of the Law of Succession Act. Further, the persons who purportedly sold the land had not been registered as proprietors of any portion, and there was no Certificate of Confirmation showing how the estate had been distributed, making the claim unsustainable.

p. 3

Legal principles established

#
  • The jurisdiction to order specific performance is founded on the existence of a valid and enforceable contract; it will not issue where the contract is invalid or unenforceable due to illegality or failure to comply with formal requirements
  • A person may not take possession of or dispose of free property of a deceased person except as expressly authorised by law or by a grant of representation

Court orders

#
  1. 1.The Plaintiffs' suit is dismissed
  2. 2.No order as to costs

Authorities

#

Legislation

  • Law of Succession ActSection 45
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land Donyo Sabuk/Komarock Block 1/526 (no specific constitutional/statutory basis stated in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Elizabeth Gatwiri Mbaya & 2 others v Jane Syombua Kyalo & 5 others [2020] KEELC 3060 (KLR)", Case Analysis (2020). Not stated in judgment (Machakos Environment and Land Court plaint dated 4th December 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3060/eng@2020-04-24

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