David Mwangi Wagacha v Anne Muthoni Wachir & 2 others [2021] KEELC 3683 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata by virtue of the ruling in Succession Cause No. 81 of 2016
Res judicata was misplaced; it requires probing of evidence and is best raised by Notice of Motion with pleadings annexed
The Court held that determining whether issues in the Plaint were directly and substantially in issue in the Succession Cause would require calling for the proceedings and pleadings. A ruling alone, without pleadings and evidence, cannot sustain a res judicata plea. Following George Kama Kimani & 4 Others v County Government of Trans-Nzoia, the best way to raise res judicata is by Notice of Motion with pleadings annexed, so the defence raised in the statement of defence failed.
Whether the sale agreements of 30th July 2015 were valid
The sale agreements were null and void as they contravened Sections 80(2) and 82(b) of the Law of Succession Act, being concluded before confirmation of grant
The letters of administration were issued on 22nd September 2016, long after the sale agreements. The 1st Defendant had no permission to sell the deceased's land before confirmation of grant, so the sale was tainted with illegality. Applying Macfoy v United Africa Co Ltd, a void act is a nullity and no right or interest could pass to the Plaintiff. The transaction also amounted to intermeddling with the deceased's estate.
Whether the Plaintiff was entitled to specific performance or a declaration of proprietorship
Specific performance was refused; the Plaintiff was entitled only to refund of the Kshs 1,000,000/= deposit
Specific performance is discretionary and unavailable where the contract is invalid for illegality. Although the Plaintiff may have been an innocent purchaser for value not party to the misrepresentation, the 1st Defendant could not pass good title. The 1st Defendant was ready and willing to reimburse the deposit, and the Court found the refund an adequate remedy, ordering reimbursement without interest within 60 days.
Whether the Defendants' counterclaim for Kshs.327,800/= demolition costs was sustainable
The counterclaim succeeded in full as the Plaintiff filed no reply and did not challenge the invoices and receipts
Section 107 of the Evidence Act places the burden of proof on the party asserting facts. The Defendants availed DW3, a demolition contractor, who produced invoices and receipts for the work done under a Court order. The receipts and amounts were never challenged on cross-examination and remained uncontroverted, so the Court awarded the Kshs.327,800/= claimed as prayed.
Legal principles established
#- A sale of immovable property of a deceased estate before confirmation of grant is void and cannot pass any right or interest
- A party who alleges facts must prove them; unchallenged evidence remains uncontroverted and may be acted upon
Court orders
#- 1.The Plaintiff's Plaint dated 23rd June 2017 is dismissed
- 2.The Defendants to reimburse a sum of Kshs 1,000,000/= without interest to the Plaintiff within 60 days from the date of the Judgment
- 3.Defendants are entitled to the amount claimed in the counterclaim of Kshs. 327,800/= as prayed
- 4.Each party to bear its own costs
- Jurisdiction invoked
- Environment and Land Court jurisdiction over disputes relating to land parcel NDUMBERI/RIABAI/1513
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "David Mwangi Wagacha v Anne Muthoni Wachir & 2 others [2021] KEELC 3683 (KLR)", Case Analysis (2021). ELC Case No. 646 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3683/eng@2021-04-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.