Were & another v Ongaro (Deceased) & 7 others (Land Case 13 of 2013) [2022] KEELC 3829 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Validity of the agreement of 12/4/2010
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
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.
Validity of the sale and transfer to the 4th and 5th defendants
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
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.
Refund of consideration paid by the plaintiffs
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
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.
Mesne profits and value of developments
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
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
#- 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
#- 1.The plaintiffs' claim against the 4th, 5th, 6th, 7th and 8th defendants is dismissed
- 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.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
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.