Ngugi v Kinyanjui & 3 others (Environment & Land Case 149 of 2013) [2022] KEELC 3418 (KLR)
The bottom line
#A buyer of land from a deceased person's family lost everything because the sales happened before the estate was legally confirmed.
What this practically means
#Executive summary
#Key legal issues
#Legality of sale agreements over unadministered estate property
All three sale agreements were illegal and void: the agreement with the 1st Defendant pre-dated confirmation of the grant; the agreement with the 3rd Defendant breached subsisting status quo and preservation orders and relied on a revoked grant; the agreement with the 4th Defendant was made when the estate had no administrator at all
Section 82 of the Law of Succession Act prohibits sale of immovable property before confirmation of a grant. The 2007 agreement with the 1st Defendant preceded the July 9, 2007 confirmation. The January 2013 agreement with the 3rd Defendant contravened status quo orders of Ony'ancha J and Rawal J and was premised on transactions declared null and void by the revocation ruling of February 21, 2013. The March 28, 2013 agreement with the 4th Defendant fell in the period when no administrator existed, amounting to intermeddling under Section 45.
Whether specific performance could issue in favour of the Plaintiff
No specific performance could be granted because the underlying contracts were void ab initio and replete with illegality
An illegal contract confers no rights and is incurably bad (Macfoy v United Africa Co Ltd). Specific performance is an equitable, discretionary remedy available only on a valid enforceable contract (Reliable Electrical Engineers Ltd v Mantrac Kenya Ltd). Since the sale agreements were void, no lawful interest accrued to the Plaintiff and no order for specific performance could issue.
Whether a refund could be ordered payable out of the Estate
No refund was payable out of the Estate because the Estate was not party or privy to the transactions; the refund claim against the 1st, 3rd and 4th Defendants failed as it was neither pleaded nor specifically proved
The Plaintiff admitted the purchase monies were never paid to the Estate or to the Administratrix. By the privity of contract doctrine (Savings and Loans Kenya Ltd v Kanyenje Karangaita Gakombe & another), the Estate could not be saddled with obligations of contracts to which it was a stranger. Further, a refund is a claim for special damages requiring specific pleading and strict proof (Hahn v Singh), and the court cannot grant relief not sought in the pleadings (IEBC v Stephen Mutinda Mule).
Whether the ELC could question the probate court's revocation orders
The Environment and Land Court has no jurisdiction to interrogate the propriety or validity of decisions of the Probate and Administration Court
The Plaintiff complained of the revocation of the grants upon which the sale agreements were premised, but the court held that any grievance against the probate court's orders had to be ventilated before that court, not in the ELC. The revocation orders, including the declaration that all transactions effected on the strength of the revoked grants were null and void, bound all persons.
Legal principles established
#- There can be no sale, alienation or disposal of any interest in the immovable estate of a deceased person prior to confirmation of the grant of letters of administration
- An illegal or void contract generates no legal or legitimate claim; such contracts are void ab initio and a nullity without need of a court order to set them aside
- Court orders must be complied with by all persons until varied or discharged, regardless of whether they were party to the proceedings in which the orders were made
- Specific performance is discretionary and will not be granted on a contract tainted with illegality
- Transactions affecting a deceased's estate before a grant of letters of administration constitute intermeddling, which is a criminal offence
Court orders
#- 1.The Plaintiff's suit is dismissed for lack of merits
- 2.No costs awarded to the 1st, 3rd and 4th Defendants against the Plaintiff
- 3.The 2nd Defendant is awarded costs of the suit against the Plaintiff, to be taxed and certified by the Taxing Officer of the Court
- Jurisdiction invoked
- First-instance civil suit transferred/referred from the Succession court (Succession Cause No. 1208 of 2006) to the Environment and Land Court for adjudication of the ownership dispute
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngugi v Kinyanjui & 3 others (Environment & Land Case 149 of 2013) [2022] KEELC 3418 (KLR)", Case Analysis (2022). Not stated in the extract (referred from Nairobi HCC Succession Cause Number 1208 of 2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3418/eng@2022-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.