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ELCPartially Allowed· [2022] KEELC 3234 (KLR)

Nandeka ((Suing as the Legal Representative of the Estate of the Late George Nzuiko)) v Manthi & 2 others ((Sued in their Capacity as the Legal Representatives of the Estate of the Late Gideon Manthi Nzyuiko)) (Environment & Land Case E145 of 2021) [2022] KEELC 3234 (KLR)

High Court of Kenya (judge sitting at Nairobi)
4 August 2022
5,377 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiff, widow of the late George Nzuiko, sued her in-laws as legal representatives of the estate of Gideon Manthi Nzyuko, seeking restraint from eviction, a declaration that the rescission agreement of 14 November 2018 and sale agreement of 22 December 2018 were null and void, and an order compelling transfer of House No. A17, Kimathi Estate, Nairobi to her or her late husband's estate for Kshs 8,600,000/-. The Defendants counterclaimed for her eviction, asserting that George had rescinded a 29 September 2017 sale agreement after failing to raise the purchase price, and that the property had instead been sold to the 2nd Defendant for Kshs 10,000,000/- with a Kshs 5,000,000/- deposit paid. The court framed five issues. It held that under the rectified certificate of confirmation of grant dated 7 October 2020 in Machakos Succession Cause No. 122 of 2010, beneficiaries in occupation had first priority to purchase, and George, whose family occupied the house from 2008, held that priority right. The rescission and sale agreements were declared null and void as contrary to the rectified grant, an existing court order that should have been challenged by appeal or review under the Law of Succession Act. The 2017 sale agreement was also invalid, bearing the signature of Agnes Kalekye who died in 2011. The Plaintiff, in occupation and willing to pay Kshs 8,600,000/-, was granted the transfer order. The counterclaims were dismissed as unproven. Considering the family nature of the dispute, each party was ordered to bear its own costs. The Plaintiff's claim substantially succeeded in full.

Key legal issues

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01

First priority right of purchase under the rectified confirmed grant

Holding

The late George Nzuiko, whose family occupied House No. A17 since 2008, held the first priority right of purchase under the rectified grant of 7 October 2020, and that right survived his death.

Reasoning

The rectified certificate of confirmation of grant provided that beneficiaries in occupation be given first priority to purchase at a price agreed by all beneficiaries. George and his family occupied the property from 2008 until his death on 30 September 2020, leaving the Plaintiff in occupation. Applying the doctrine of priority, the court found his right of first priority subsisted.

p. 8
02

Validity of the rescission agreement of 14 November 2018 and sale agreement of 22 December 2018

Holding

Both agreements were null and void because they were contrary to the terms of the rectified confirmed grant, an existing court order, and no appeal or review against that grant was pursued.

Reasoning

The rescission agreement purported to release George's interest and enable sale to a third party, contrary to the rectified grant of 7 October 2020. The court held that a person aggrieved by a confirmation of grant should appeal or seek review under the Law of Succession Act; absent that, the court invalidated the agreements.

p. 9
03

Enforceability of the sale agreement dated 29 September 2017

Holding

The agreement was invalid because it bore the signature of Agnes Kalekye, who had died in a road accident in 2011 and thus had no capacity to execute it.

Reasoning

The court perused the sale agreement and considered the Plaintiff's testimony and the cross-examination of DW1 and DW2. DW1 admitted Agnes Kalekye died in a road accident in 2011, yet her signature appeared on the 2017 agreement. The 2nd Defendant also admitted the purported signature was made by her son. The agreement therefore could not be enforced.

p. 10
04

Plaintiff's entitlement to transfer of the suit property at Kshs 8,600,000/-

Holding

The Plaintiff, being in occupation and willing to purchase at Kshs 8,600,000/- in line with the rectified grant, was entitled to the order compelling transfer.

Reasoning

The Plaintiff demonstrated continued occupation and willingness to pay the agreed consideration consistent with the terms of the rectified grant. The Defendants' objections (failure to pay within 90 days, prior sale to the 2nd Defendant) rested on invalid agreements, so the transfer order issued.

p. 10
05

Defendants' counterclaims for eviction

Holding

The counterclaims were dismissed as unproven.

Reasoning

The Defendants failed to lay a basis for entitlement to eviction orders during the hearing. The Plaintiff's testimony established occupation since 2008 and the deceased's existing first priority right of purchase, defeating the eviction claim.

p. 10

Legal principles established

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  • A beneficiary in occupation of estate property under a confirmed grant has first priority to purchase that property.
  • An agreement entered into contrary to an existing court order (such as a rectified confirmed grant) has no force of law and cannot bind the parties.
  • A sale agreement bearing the signature of a person who was dead at the time of execution is invalid and unenforceable.

Court orders

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  1. 1.An order restraining the Defendants, whether by themselves, their servants or agents, from evicting or interfering with the Plaintiff's and the deceased children's quiet possession and enjoyment of House No. A17, Kimathi Estate, Nairobi
  2. 2.A declaration that the Rescission Agreement dated November 14, 2018 and the Sale Agreement dated December 22, 2018 are both null and void
  3. 3.An order directing the Defendants to transfer to the Plaintiff or the estate of the late George Nzuiko the property known as House No. A17, Kimathi Estate, Nairobi for the consideration of Kshs 8,600,000/-
  4. 4.The prayers in the 1st and 2nd Defendants' counterclaims are declined/dismissed
  5. 5.Each party shall bear their own costs of the suit

Authorities

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Legislation

  • Law of Succession Actcap 160
  • Civil Procedure Actsection 27

Cases cited (1)

  • Suleiman Said Shabhal v IEBC & 3 others
    (2014) eKLR
Jurisdiction invoked
Original civil jurisdiction over the plaint and counterclaims; the court enforced orders in Machakos High Court Succession Cause No. 122 of 2010 (rectified grant of 7 October 2020) without sitting on appeal from it

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, "Nandeka ((Suing as the Legal Representative of the Estate of the Late George Nzuiko)) v Manthi & 2 others ((Sued in their Capacity as the Legal Representatives of the Estate of the Late Gideon Manthi Nzyuiko)) (Environment & Land Case E145 of 2021) [2022] KEELC 3234 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3234/eng@2022-08-04

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