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ELCDismissedELC Appeal (from PMCC No. 39 of 2017, Nkubu)· [2021] KEELC 2314 (KLR)

Peter Kiambi Manyara v Gidion M’ithima & 2 others [2021] KEELC 2314 (KLR)

Environment and Land Court
28 July 2021
ECE.C. Cherono
6,173 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that selling a dead person's land before succession is completed is unlawful, and the buyer loses the property.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Garissa against the judgment of Principal Magistrate J. Irura delivered on 15th May 2019 in a land dispute over parcel No. NKUENE/L-MIKUMBUNE/1760. The respondents (plaintiffs below) had sued for declarations that transfers of the parcel - first to Morris Kiruja Ithima (1st defendant, since deceased and never substituted) and then to Peter Kiambi Manyara (2nd defendant/appellant) - were fraudulent and unlawful, cancellation of title, reversion of the land, and a permanent injunction. The trial court found for the plaintiffs. The appellant advanced thirteen grounds, principally that fraud was not proved to the required standard, that the trial court ignored the sale agreements of 14th October 2006, 21st March 2009 and 4th March 2012 and the acknowledgment receipt witnessed by the 1st plaintiff, that findings were made against the deceased 1st defendant whose suit had abated, and that the court considered extraneous matters. The respondents maintained the transfers were products of a corrupt scheme, the agreements were void for dealing with a deceased's estate, and past consideration could not support the 4th March 2012 agreement. Relying on Sella Vs Associated Motor Boat Co., the court re-evaluated the evidence, noted inconsistencies in the agreements, and adopted the trial magistrate's finding that the land was registered in a deceased person's name when sold. Applying section 45 as read with section 82 of the Law of Succession Act and following Morris Mwiti Mburugu, the court held the transactions amounted to unlawful intermeddling, nullifiable by innocent beneficiaries, and that the transfers were fraudulent and illegal. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Sale and transfer of land registered in the name of a deceased person before completion of succession

Holding

Such transactions amount to unlawful intermeddling and are nullified at the instance of innocent beneficiaries

Reasoning

The court held that the sale agreements of 14th October 2006 and 21st March 2009 and subsequent transfer disposed of property still registered in a deceased person's name. Section 45 of the Law of Succession Act prohibits intermeddling and section 82 prohibits sale of immovable property before confirmation of grant. Following Morris Mwiti Mburugu, the court found the 2nd defendant committed a criminal offence by intermeddling and the transactions could not be protected.

p. 6
02

Whether fraud was proved against the 2nd defendant

Holding

Yes; the circumstances of the transfers, including dealing with a non-existent parcel and a deceased's property, established fraudulent and illegal transfer

Reasoning

The court agreed with the trial magistrate that the 2nd defendant failed to conduct proper due diligence, that the suit land did not exist when the earliest agreements were made, and that the succession cause had not been conducted. The findings of the trial magistrate on fraud and illegality were adopted by this court as well reasoned and supported by the evidence on record.

p. 7

Legal principles established

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  • A first appellate court must re-evaluate the evidence and draw its own conclusions while making allowance for not having seen or heard the witnesses
  • A transaction dealing with the free property of a deceased person before succession, done contrary to sections 45 and 82 of the Law of Succession Act, is intermeddling and liable to be nullified and set aside

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondents

Authorities

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Legislation

  • Law of Succession Act, Cap 160 Laws of KenyaSection 45
  • Law of Succession Act, Cap 160 Laws of KenyaSection 82

Cases cited (7)

  • Gichinga Kibutha Vs Caroline Nduku
    (2018) e K.L.R.
  • Kinyanjui Kamau Vs George Kamau Njoroge
    (2015) e K.L.R.
  • Wilberforce Asiepi Ongoru & 2 Others Vs Margaret Ondeso Opio & 3 Others
    HCCC No. 1484 (Nairobi) of 2000
  • Simon Thuku Kandiu & Another Vs Lilian Wathithi Muigai
    (2019) e K.L.R.
  • Lawrence Mukiri Vs Attorney General & 4 Others
    (2013) e K.L.R.
  • Sella Vs Associated Motor Boat Co.
    (1968) E.A 123
  • Morris Mwiti Mburugu Vs Denis Kimathi M'Mburugu
    (2016) e K.L.R.
On appeal from
Principal Magistrate's Court, Nkubu
PMCC No. 39 of 2017 (also referred to as ELC Case No. 39 of 2007)
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from the Magistrates' Court in land matters

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, "Peter Kiambi Manyara v Gidion M’ithima & 2 others [2021] KEELC 2314 (KLR)", Case Analysis (2021). ELC Appeal (from PMCC No. 39 of 2017, Nkubu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2314/eng@2021-07-28

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