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ELCPartially AllowedNot stated in judgment (memorandum of appeal dated 23.8.2021)· [2023] KEELC 429 (KLR)

Elias & another v Hezekiah & 2 others (Suing as the Legal Representatives and Administrators of the Estate of Kinga M’abira – Deceased) (Environment and Land Appeal 2 of 2022) [2023] KEELC 429 (KLR)

Environment and Land Court
1 February 2023
CNC.K. Nzili
3,396 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Land belonging to a deceased person cannot legally be transferred in Kenya until succession rules are followed, so the buyers lost the land.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court (C.K. Nzili, ELC J) against the trial court's judgment of 26 July 2021. The respondents, as relatives of the late Kiunga M'Abira (registered owner of LR No. Abothuguchi/Gitie/960, who died on 21.11.2014 leaving no wife or children), had sued the appellants, alleging that the appellants fraudulently, illegally and unprocedurally transferred and registered the suit land into their names and trespassed on it. The trial court found for the respondents, invalidating the transfers, cancelling the title and awarding general damages of Kshs.200,000/=. On appeal the appellants faulted the shifting of the burden of proof, the invalidation of their 5.4.2014 sale agreement and the land control board consent, and the damages award. The court reapplied the settled first appellate duty to re-evaluate the evidence. It found that although the sale agreement, consent and transfer forms were executed before the deceased's death, the transfer forms were lodged on 27.11.2014, six days after his death; no stamp duty or registration receipts were produced; payment of the purchase price was unproved; and the legal representatives were never involved, rendering the registration a nullity under the Law of Succession Act line of authority. The appeal was dismissed with costs, but the general damages award was set aside for want of supporting evidence.

Key legal issues

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01

Whether the sale, transfer and registration were fraudulent, illegal or unprocedural

Holding

Yes - the transfer was lodged and processed 6 days after the deceased died, without disclosure to the land registrar and without involvement of the legal representatives or proof of payment

Reasoning

The appellants admitted the transfer forms were lodged on 27.11.2014, six days after death on 21.11.2014. They produced no stamp duty receipts, registration fee receipts or proof of payment of the purchase price. The transaction required completion by the legal representatives even if documents were executed before death. Material facts were not disclosed to the land registrar.

p. 6
02

Standard of proof of fraud

Holding

Fraud must be specifically pleaded and proved to the required standard; the court found the pleadings traversed fraud and considered whether the respondents proved it

Reasoning

Order 2 Rules 4 and 10 of the Civil Procedure Rules require fraud to be specifically pleaded with particulars. Having found fraud pleaded and traversed, the court applied the standard set in Arithi Highway Developers and Virjay Morjaria and concluded the respondents proved the illegality.

p. 5
03

General damages for trespass

Holding

Set aside for want of evidential support

Reasoning

Although the trial court acknowledged no evidence was adduced on damages for trespass or loss of user, it nevertheless awarded Kshs.200,000/=. On appeal this head was set aside even as the rest of the appeal was dismissed.

p. 6

Legal principles established

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  • Before Section 55 of the Law of Succession Act is complied with, no property of a deceased person can validly be transferred; such registration is a nullity
  • A title obtained unprocedurally may be impeached under Section 26(1) of the Land Registration Act; estoppel and equity cannot sanitize an illegality
  • A transfer of a deceased registered owner's land presented after death, outside the law of succession, is a nullity
  • Where a title deed is questioned, the holder must produce the full paper trail showing lawful acquisition
  • A first appellate court must reconsider and re-evaluate the evidence and draw its own conclusions

Court orders

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  1. 1.The appeal is dismissed with costs
  2. 2.The award of general damages of Kshs.200,000/= is set aside

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule (4) and 10
  • Law of Succession ActSection 45
  • Law of Succession ActSection 55
  • Law of Succession ActSection 62
  • Land Registration ActSection 26 (1)
  • Trespass ActSection 3 (1)

Cases cited (17)

  • Gitobu Imanyara & 2 others vs AG
    (2016) eKLR
  • Peters vs Sunday Post
    (1958) E.A 424
  • Abok James Odera t/a AJ Odera & Associates vs John P. Machira t/a Machira and Co.
    (2013) eKLR
  • Kuria Kiarie & 2 others vs Sammy Magera
    (2018) eKLR
  • Evans Otieno Nyakwana vs Cleophas Bwana Ongaro
    (2015) eKLR
  • Zachariah Wambugu Gathimu & another vs John Ndungu Maina
    ELC NO. 244 of 2017 at Nyahururu
  • Elijah Makeri Nyangwara vs Stephen Mungai Njuguna & another
    (2013) eKLR
  • Railal G. Patel vs Lalji Meghji
    (1957) C.A 315
  • Solomon Aminani vs Salome Mutenyo Otunga
    (2016) eKLR
  • Arithi Highway Developers Ltd vs West End Butchery Limited & 6 others
    (2015) eKLR
  • Virjay Morjaria vs Nansingh Madhusingh Darbar & another
    (2000) eKLR
  • Bahola Mkalindi vs Michael Seth Kiseme & others
    (2012) KLR
  • In Re-estate of Chesimbili Sindani (deceased)
    (2021) eKLR
  • Mary Watiri Mwangi (suing as representative of the Estate of Kiburio Kamutu) vs Timothy Kimani Kiburio & 3 others
    (2018) eKLR
  • David Sironga Ole Tunkai vs Francis Arap Muge & 2 others
    (2014) eKLR
  • Grace Waruinu Ngigi & another vs Ngugi Nguri & 4 others
    (2002) eKLR
  • Dr. Joseph Arap Ngok vs Justice Moijo Ole Keiwua & 5 others
    Civil Appeal No. Nai 60 of 1997
On appeal from
Trial court (not specified in judgment)
Not stated
Jurisdiction invoked
First appellate jurisdiction over the trial court judgment (memorandum of appeal dated 23.8.2021)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Elias & another v Hezekiah & 2 others (Suing as the Legal Representatives and Administrators of the Estate of Kinga M’abira – Deceased) (Environment and Land Appeal 2 of 2022) [2023] KEELC 429 (KLR)", Case Analysis (2023). Not stated in judgment (memorandum of appeal dated 23.8.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/429/eng@2023-02-01

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