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ELCDismissedOriginating Summons (Interpleader) - HCC (not specified in judgment)· [2022] KEELC 3350 (KLR)

Tom O K'opere T/A T.O. K’Opere & Company Advocates v SIS Dominic Savio Akoth for &On Behalf of Fransiscan Sisters of Saint Joseph (Asumbi) Registered Trustees & another; Were & 3 others (Interested Parties) (as administrators by Limited Grant ad Litem of the Estate of the Late Richard Omanya (Deceased)) (Environment & Land Case 220 of 2012) [2022] KEELC 3350 (KLR)

Environment and Land Court (High Court of Kenya at Kisumu)
6 May 2022
12,037 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicant advocate, Tom O K'opere, brought interpleader proceedings under Order 34 of the Civil Procedure Rules seeking determination of who, between the 1st Respondent (Franciscan Sisters of St Joseph (Asumbi)) and the 2nd Respondents (purported family members of the late Richard Omanya Adongo), was entitled to release of title documents for land parcel West Kasipul/Kodera Karabach/599, held in court pending the determination, and who should pay his fees. The title documents arose from a bank auction in December 2004 following a charge to National Bank of Kenya. The 1st Respondent claimed it bought the whole property at the auction and paid the full purchase price; the 2nd Respondents claimed an oral arrangement that only a portion be sold to the Sisters with the estate retaining the homestead; the Interested Parties, the deceased's surviving children, contended the whole transaction was a flawed intermeddling with the estate of a deceased person and that the matter belonged in a succession cause. The court framed seven issues and found: the Plaintiff did not act in good faith or professionally; the purported public auction was pre-arranged and no statutory notice was produced; the widow and parties lacked capacity having no grant of letters of administration, contravening sections 45 and 82 of the Law of Succession Act; no valid Land Control Board consent was obtained within the six-month period, rendering the transaction void under the Land Control Act; and contradictory evidence existed on whether the whole or part of the property was sold. The court declined to determine beneficiaries, refused the advocate's claim for fees for want of good faith, dismissed the interpleader suit with costs, and left the question of entitlement to the succession cause process.

Key legal issues

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01

Whether the Plaintiff acted in good faith

Holding

The Plaintiff did not act in good faith or in a professional manner

Reasoning

The court found the advocate failed to advise the Respondents to reduce their agreement to writing, failed to produce minutes of joint meetings, and misled the 2nd Respondents into agreeing to a sale of a deceased person's property knowing no grant of letters of administration had been obtained, while using an agent lacking capacity to contract.

02

Whether the public auction of December 7, 2004 was valid

Holding

The auction was invalid; the statutory notice was not produced and the auction was pre-arranged, and the widow lacked capacity to sign transfer documents

Reasoning

Neither party produced the statutory notice so the court could not confirm it was issued. The widow lacked capacity to transfer, and the purported public auction was pre-arranged with a single nominated bidder, defeating the openness required of a public auction.

p. 16
03

Whether the parties contravened section 45 of the Law of Succession Act

Holding

The dealings amounted to intermeddling with the free property of a deceased person

Reasoning

Applying sections 45 and 82 of the Law of Succession Act and the decisions in Muriuki Hassan and Morris Mwiti Mburugu, the court found that dealing with the deceased's property before confirmation of a grant is unlawful intermeddling and cannot be protected by the court.

p. 17
04

Whether there was a valid Land Control Board consent

Holding

No valid consent existed; the six-month period under section 8 lapsed and the transaction was void under section 6

Reasoning

Relying on sections 6, 7, 8 and 22 of the Land Control Act and Onyango v Luwayi and Willy Kimutai Kitilit, the court held the consent application was not made within six months and no extension was sought; the transaction was therefore void and the property still belongs to the deceased's estate.

p. 21
05

Whether the 1st Respondent purchased the whole or part of the suit property

Holding

The court found the parties gave contradictory information; the advertisement, certificate of sale and transfer indicated the whole property

Reasoning

The auction advertisement, the Certificate of Sale of December 7, 2004 and the transfer document all indicated the entire 19.5 Ha was sold, yet the 1st Respondent's witness statement admitted the homestead and graves were to be excluded, producing irreconcilable contradiction.

p. 18
06

Whether the Plaintiff is entitled to costs/fees

Holding

Not entitled, having failed to act in good faith

Reasoning

Because the Plaintiff did not act in good faith, the court declined to order any party to pay his fees, holding he should ascertain liability himself as both Respondents engaged his services on different occasions.

Legal principles established

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  • A controlled transaction over agricultural land is void for all purposes absent Land Control Board consent
  • Persons dealing with free property of a deceased without a grant of representation intermeddle contrary to section 45 of the Law of Succession Act
  • A pre-arranged auction is not a valid public auction

Court orders

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  1. 1.Dismissal of the Originating Summons (interpleader proceedings) with costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 34 Rules 1, 2, 3, 4, 5, 6 and 8
  • Civil Procedure ActSections 1A, 1B, 3A and 58
  • Land Control Act Cap 302Sections 6, 7, 8 and 22
  • Registered Lands Act (repealed)Sections 74 and 77(4)
  • Law of Succession Act Cap 160Sections 45 and 82
  • Law of Contract ActSection 3(3)
  • Limitation of Actions ActSections 7, 9 and 16

Cases cited (10)

  • Prime Bank Ltd vs Assumption Sisters of Nairobi Registered Trustees & 2 Others
    (2018) eKLR
  • Daudi Ledama Morintat vs Mary Christine Karie & 2 Others
    (2017) eKLR
  • Re Estate of Owino Rachier (Deceased)
    (2019) eKLR
  • Re Estate of Job Ndunda Muthike (Deceased)
    (2018) eKLR
  • Benson Mutuma Muriungi vs C.E.O Kenya Police Sacco & Another
    (2016) eKLR
  • Isaac Ngatia v Paul Kaiga Githui
    (2017) eKLR
  • Muriuki Hassan v Rose Kanyua and 4 others
    [2014] eKLR
  • Morris Mwiti Mburugu v Denis Kimathi M'Mburugu
    [2016] eKLR
  • Onyango & Another v Luwayi
    [1986] KLR 513
  • Willy Kimutai Kitilit v Michael Kibet
    [2018] eKLR
Jurisdiction invoked
Order 34 Rules 1,2,3,4,5,6 and 8 of the Civil Procedure Rules, 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act (interpleader proceedings); Section 58 of the Civil Procedure Act

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, "Tom O K'opere T/A T.O. K’Opere & Company Advocates v SIS Dominic Savio Akoth for &On Behalf of Fransiscan Sisters of Saint Joseph (Asumbi) Registered Trustees & another; Were & 3 others (Interested Parties) (as administrators by Limited Grant ad Litem of the Estate of the Late Richard Omanya (Deceased)) (Environment & Land Case 220 of 2012) [2022] KEELC 3350 (KLR)", Case Analysis (2022). Originating Summons (Interpleader) - HCC (not specified in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3350/eng@2022-05-06

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