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)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff acted in good faith
The Plaintiff did not act in good faith or in a professional manner
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.
Whether the public auction of December 7, 2004 was valid
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
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.
Whether the parties contravened section 45 of the Law of Succession Act
The dealings amounted to intermeddling with the free property of a deceased person
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.
Whether there was a valid Land Control Board consent
No valid consent existed; the six-month period under section 8 lapsed and the transaction was void under section 6
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.
Whether the 1st Respondent purchased the whole or part of the suit property
The court found the parties gave contradictory information; the advertisement, certificate of sale and transfer indicated the whole property
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.
Whether the Plaintiff is entitled to costs/fees
Not entitled, having failed to act in good faith
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
#- 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
#- 1.Dismissal of the Originating Summons (interpleader proceedings) with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.