Peter Kaguara Uiru v Peter Githua Chege & another [2020] KEELC 3569 (KLR)

The suit property was registered in the name of the 1st defendant's deceased father at the material time. The 1st defendant held no letters of administration and had no power of attorney. Under the Law of Succession Act only a personal representative may deal with a deceased's estate. The purported agreement was therefore null and void ab initio and created no enforceable rights.

The registered owner died on 17th July 1986, yet the 1992 agreement purported to dispose of his land. Section 45(1) forbids any person from taking possession of, disposing of, or otherwise intermeddling with free property of a deceased person except under a grant or express authority. No grant existed at the time of the agreement, so the transaction was unlawful from inception.

Section 6(1) of the Land Control Act provides that dealings in agricultural land within a land control area are void for all purposes absent Land Control Board consent. Both parties admitted no consent was sought. Consent could not have cured the agreement anyway, since the vendor lacked capacity. The plaintiff's equitable plea of acquired interest could not override the statute.

Adopting Ouko J's observation in Nakuru HCCC No. 196 of 2012, the dispute concerned an alleged breach of contract of sale, not matters enumerated under section 3 of the repealed Act. A tribunal decision made in excess of jurisdiction is a nullity and cannot found rights in subsequent proceedings.