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ELCPartially AllowedNot stated in the extract (Kitale Environment and Land Court suit)· [2022] KEELC 3829 (KLR)

Were & another v Ongaro (Deceased) & 7 others (Land Case 13 of 2013) [2022] KEELC 3829 (KLR)

Environment and Land Court
11 August 2022
9,707 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~39 min to read original · ~4 min brief

The bottom line

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A land sale by estate administrators before their grant was confirmed was void, so buyers recovered their money, but later buyers who relied on a confirmed grant kept the land.

What this practically means

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Executive summary

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The plaintiffs sued eight defendants seeking declarations that the 1st and 2nd defendants had no power to sell Kitale Municipality Block 11/52, cancellation of the title obtained by the 4th and 5th defendants, rectification of the register, refund of the current value of the land, mesne profits and the value of developments destroyed. The claim rested on a sale agreement dated 12/4/2010 executed with the 1st and 2nd defendants as administrators of the estate of Henry Goro Akum, the registered owner who died in 1989. The court framed six issues. On the first, it held that although the administrators had obtained a grant in February 2010, the grant had not been confirmed when the agreement was executed, so under section 55 of the Law of Succession Act they had no power to sell; the agreement was illegal, null and void ab initio. On the second issue, the sale to the 4th and 5th defendants occurred after confirmation of the grant and the court found them to be bona fide purchasers for value without notice; the alleged stamp duty irregularity was explained by the Land Registrar and did not invalidate the transfer. Refund was awarded only against the 2nd and 3rd defendants, the 3rd having received Kshs 1,102,000/= as the sellers' agent without denying receipt. Claims against the 4th to 8th defendants were dismissed, mesne profits failed for want of pleaded proprietorship, and the claim for the value of developments failed as unpleaded and unproved special damages. Judgment was entered for Kshs 1,890,364/= with 18% interest from 22/6/2010 against the 2nd and 3rd defendants, who were also ordered to bear the costs of all other parties. The suit against the deceased 1st defendant abated. Mwangi Njoroge J delivered the judgment at Nakuru on 11 August 2022.

Key legal issues

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01

Validity of the agreement of 12/4/2010

Holding

The agreement was illegal, null and void ab initio and unenforceable because the grant of letters of administration held by the 1st and 2nd defendants had not been confirmed when it was executed

Reasoning

Henry Goro Akum was the registered owner and died in 1989. The 1st and 2nd defendants obtained a grant on 26/2/2010 but it was only confirmed on 13/3/2012 (or 9/3/2012 as stated). Under section 55 of the Law of Succession Act, administrators have no power to distribute capital assets before confirmation. The earlier 2006 agreement with Tom Ongaro could not cure this since Tom never held a grant or title.

p. 10
02

Validity of the sale and transfer to the 4th and 5th defendants

Holding

The sale agreement of 30/11/2012 and the transfer were valid; the 4th and 5th defendants are bona fide purchasers for value without notice and their title cannot be cancelled

Reasoning

By the time of the sale, the grant had been confirmed, giving the administrators power to sell. No restriction, caution or inhibition was registered in the plaintiffs' favour, so the Land Registrar acted regularly. The alleged stamp duty discrepancy was explained by the Land Registrar and was not of a kind to invalidate the transfer.

p. 12
03

Refund of consideration paid by the plaintiffs

Holding

The 2nd and 3rd defendants are jointly liable to refund monies received by the 3rd defendant as agent of the sellers, but not the Kshs 1,000,000/= paid to the late Tom Ongaro whose estate is not a party

Reasoning

Credible documentary evidence established that the 3rd defendant received Kshs 1,102,000/= as agent for the 1st and 2nd defendants, and she never denied receipt in evidence. The sum paid to Tom under the 2006 agreement is not recoverable from these defendants since they were not joined as administrators of Tom's estate and never received it.

p. 14
04

Mesne profits and value of developments

Holding

Both claims fail - mesne profits because proprietorship was not established and defendants not specifically pleaded; development value because special damages were not pleaded or proved

Reasoning

Mesne profits attach to a registered proprietor against a trespasser; the plaintiffs were never registered proprietors. The value of alleged developments was not expressly pleaded in the amended plaint and no expert assessment was produced, falling foul of the rule that special damages must be specifically pleaded and strictly proved.

Legal principles established

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  • No immovable property forming part of a deceased's net estate may be sold or distributed before confirmation of the grant of representation; a sale done in contravention of section 55 of the Law of Succession Act is null and void
  • A bona fide purchaser for value without notice who obtains registration after due diligence takes an indefeasible title notwithstanding a prior unperfected agreement over the land
  • Special damages must be specifically pleaded and strictly proved
  • Failure to deny receipt of monies in evidence may be treated as an admission of receipt

Court orders

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  1. 1.The plaintiffs' claim against the 4th, 5th, 6th, 7th and 8th defendants is dismissed
  2. 2.Judgment entered in favour of the plaintiffs against the 2nd and 3rd defendants in terms of prayer (i) of the amended plaint to the extent that the 2nd and 3rd defendants shall refund and pay the plaintiffs Kshs 1,890,364/= with interest at 18% from 22/6/2010 until payment in full
  3. 3.The 2nd and 3rd defendants shall bear the plaintiffs' costs of the suit and also the costs of the 4th, 5th, 6th, 7th and 8th defendants with interest at court rates until paid in full

Authorities

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Legislation

  • Law of Succession ActSection 55
  • Land Registration ActSection 26

Cases cited (7)

  • In Re Estate of Paul M'Maria (Deceased)
    [2017] eKLR
  • Joseph Karua Ngareh v Mary Gathoni Kihara & 2 others
    [2018] eKLR
  • Nicholas Thuo Kabaiku v Serah Njeri Mbatia
    [2021] eKLR
  • Christine Nyanchama Oanda v Catholic Diocese of Homa Bay Registered Trustees
    [2020] eKLR (NBI Civil Appeal No. 208 of 2018)
  • Jogoo Kimakia Bus Services Ltd vs. Electrocom International Ltd
    [1992] KLR 177
  • Joseph Kipkorir Rono vs. Kenya Breweries Limited & Another
    Kericho HCCA No. 45 of 2003
  • Herbert Hahn v Amrik Singh
    [1985] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land

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, "Were & another v Ongaro (Deceased) & 7 others (Land Case 13 of 2013) [2022] KEELC 3829 (KLR)", Case Analysis (2022). Not stated in the extract (Kitale Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3829/eng@2022-08-11

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