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ELCDismissedEnvironment and Land Appeal 1 of 2020· [2022] KEELC 14456 (KLR)

Ojwang v Hongo & another

Environment and Land Court
27 October 2022
AOA. O. Ombwayo
2,129 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Buying land from someone without letters of administration for a deceased owner gives you no valid title in Kenya.

What this practically means

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Executive summary

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The appellant, Judith Anyango Ojwang, appealed against the judgment of Hon. W. K. Onkunya, Senior Resident Magistrate, in Kisumu CM ELC No. 232 of 2018, which had dismissed her suit for eviction, injunction and a declaration of ownership over Kisumu/Kochieng/4326 and 4327 (subdivisions of Kisumu/Kochieng/219), and allowed the respondents' counter-claim nullifying the subdivision and cancelling her registration. The appellant's case was that she bought the land from Naaman Ogot and was registered as proprietor, but the respondents encroached on it. The respondents asserted that the appellant had fraudulently procured transfer of land registered in the name of Ogot Sana (deceased) and claimed equitable interests acquired from the deceased's beneficiaries. The trial magistrate found that the 1998 sale agreement was executed when the registered owner was dead and the purported seller held no grant of letters of administration, rendering the transaction illegal, the subdivision a nullity and the appellant's registration cancellable. On appeal, Ombwayo, J, applied section 45 of the Law of Succession Act, which prohibits intermeddling with a deceased person's free property, and endorsed the cited High Court authorities holding that transactions in respect of a deceased's estate without a grant are nullities, with property so acquired unprotected under Article 40(6) of the Constitution. The court found the magistrate had applied the law properly and dismissed the appeal with costs.

Key legal issues

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01

Validity of sale of a deceased person's land without a grant of letters of administration

Holding

The sale by Naaman Ogot of land registered in the name of the deceased Ogot Sana, before obtaining a grant, was illegal and a nullity; the appellant acquired no valid title

Reasoning

The court applied section 45 of the Law of Succession Act prohibiting intermeddling with a deceased's free property. The sale agreement of 20 April 1998 was executed when the registered owner was deceased and the purported seller had no grant. Following superior court authority, such a transaction is void, and the subsequent subdivision and registration of the appellant were equally illegal, sustaining the magistrate's dismissal of the suit and allowance of the counter-claim.

p. 4
02

Whether the magistrate's judgment should be disturbed on appeal

Holding

The magistrate properly applied the law; the appeal was dismissed

Reasoning

As a first appellate court the judge considered the appeal and submissions and found the magistrate had correctly held that the appellant acquired the land illegally, since the transaction contravened section 45 of the Law of Succession Act. No error in the application of the law was identified, so the dismissal of the suit and the orders nullifying the subdivision and cancelling the appellant's registration stood.

p. 3

Legal principles established

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  • No person shall take possession of, dispose of, or otherwise intermeddle with free property of a deceased person except as authorized by a grant of representation or written law
  • Any transaction in respect of a deceased person's property done without letters of administration is illegal and a nullity

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The appellant to pay costs of the appeal

Authorities

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Legislation

  • Law of Succession ActSection 45
  • Law of Succession ActSection 82(b)(ii)
  • Law of Succession ActSection 80(2)
  • Constitution of KenyaArticle 40(6)

Cases cited (2)

  • Virginia Mwari Thuranira vs. Purity Nkirote Thuranira
    [2017] eKLR

    Sale of deceased's property without letters of administration is null and void; intermeddling is a nullity

  • Re Estate of Paul M'Maria (Deceased)
    [2017] eKLR

    Statutory bar on selling estate property before confirmation of grant is mandatory; such acquisition is unlawful and unprotected under Article 40(6)

On appeal from
Senior Resident Magistrate's Court at Kisumu
Kisumu CM ELC No. 232 of 2018
Jurisdiction invoked
First appellate jurisdiction over the magistrate's court in an environment and land matter

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, "Ojwang v Hongo & another", Case Analysis (2022). Environment and Land Appeal 1 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14456/eng@2022-10-27

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