Margaret Mukami Macharia (Adminstrator of the Estate of Esther Wangu Macharia) v Jessie Maina Gitau [2022] KEELC 1429 (KLR)
The bottom line
#An innocent land buyer lost his Kenyan plot because the original seller had no legal authority to sell estate property before probate was confirmed.
What this practically means
#Executive summary
#Key legal issues
#Legality of the sale by Michael Muriithi to Susan Njeri
The sale agreement was null and void as Muriithi had no grant of letters of administration and no capacity to dispose of estate property in 2002, the grant having been issued only in 2007
The court found DW2 admitted the property belonged to the deceased. No evidence of bequest to Muriithi was tendered. Section 82 of the Law of Succession Act prohibits sale of immovable property before confirmation of grant. The grant issued on 14th March 2007, after the 2002 sale, so Muriithi lacked capacity and the agreement was a nullity which cannot be redeemed.
Whether Susan Njeri acquired valid title
No title passed, as a person without title cannot confer title (nemo dat quod non habet)
Applying the nemo dat principle as discussed in Diamond Trust Bank Kenya Ltd v Said Hamad Shamisi, the court held that since Muriithi had no title, Susan Njeri acquired none and consequently could not pass any title to the Defendant.
Whether the Defendant was a bona fide purchaser for value without notice
The doctrine did not assist the Defendant because the revised requirement in Mwangi James Njehia demands a valid, not merely apparent, vendor title
The court noted that Katende v Haridar was reviewed in Mwangi James Njehia, which held the 'apparent valid title' requirement should be done away with. Since Susan Njeri bought from a person without capacity and title, she had no valid title; the Defendant therefore could not surmount the revised condition number 5.
Whether the Defendant's title is indefeasible
The title was vitiated and defeasible under Section 26(1)(b) of the Land Registration Act
Section 26(1)(b) permits challenge of titles acquired illegally, unprocedurally or through a corrupt scheme, without requiring proof that the title holder was party to the illegality. Relying on Alice Chemutai Too v Nickson Kipkurui Korir, the court held the Defendant's title was amenable to revocation and cancellation.
Legal principles established
#- A sale of immovable property forming part of a deceased's estate before confirmation of a grant of letters of administration is a nullity
- One who has no title cannot pass title - nemo dat quod non habet
- A bona fide purchaser must establish that the vendor had a valid title, not merely an apparent valid title
- Under Section 26(1)(b) of the Land Registration Act, a title acquired illegally, unprocedurally or through a corrupt scheme is challengeable even against an innocent subsequent purchaser who was not party to the illegality
Court orders
#- 1.Judgment entered in terms of the Plaint dated 7th September 2016
- 2.The Defendant's title to Plot No. L35 Kahawa West cancelled
- 3.The Defendant to vacate and hand over vacant possession of the suit property to the Plaintiff within 60 days, in default eviction to issue
- 4.The Defendant's counter claim dismissed
- 5.Costs of the suit and the counter claim awarded to the Plaintiff
- Jurisdiction invoked
- Original civil jurisdiction over a claim concerning land (Plot No. L35 Kahawa West), the plaintiff seeking prohibition of trespass and eviction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Margaret Mukami Macharia (Adminstrator of the Estate of Esther Wangu Macharia) v Jessie Maina Gitau [2022] KEELC 1429 (KLR)", Case Analysis (2022). Not stated in the judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1429/eng@2022-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.