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ELCPartially AllowedNot stated in the judgment provided· [2023] KEELC 574 (KLR)

Birya t/a Bii Enterprises v Jilani (the Administrator of the Estate of Kevin Mwamuye Jilani) & 3 others (Environment & Land Case 85 of 2016) [2023] KEELC 574 (KLR)

Environment and Land Court
8 February 2023
MOM.A. Odeny
1,726 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Malindi court confirmed that land a deceased person validly sold before death cannot be claimed by his estate, and ordered the property returned to the buyer.

What this practically means

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Executive summary

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By a plaint dated 15th April 2016, the plaintiff sought a permanent injunction restraining the 1st Defendant (administrator of the estate of Kevin Mwamuye Jilani, deceased) from transferring Plot No. Group V/605 (Original No. 507/98), CR 39322/1, to the 2nd Defendant, a prohibitory order against the 4th Defendant (Registrar), and a declaration that he is the rightful owner. The plaintiff testified that the deceased owed him Kshs. 700,000 and offered land in repayment; the vendor, Kilifi Plantations Limited, executed a direct transfer to the plaintiff's company, Bii Enterprises, on 26th April 2010 at the deceased's instruction. A director of Kilifi Plantations (PW2) corroborated this in evidence and a written confirmation, stating the company never signed any transfer to the 2nd Defendant. The defendants, who never filed submissions, relied on a certificate of confirmation of grant and documents, including the original title, obtained from an advocate's clerk; DW2 admitted the registered owner when the title reached the family was Kilifi Plantations Limited. The court framed two issues: rightful ownership and entitlement to the orders sought. It held the property was still registered in the vendor's name when the grant was confirmed and therefore never formed part of the deceased's estate; the deceased had validly sold and transferred it to the plaintiff. The court found the 1st Defendant sought to benefit where he did not sow. Judgment was entered for the plaintiff with a permanent injunction, an order for surrender of the original title within 14 days, a declaration of ownership, a direction to the 4th Defendant to effect the transfer, and costs to the plaintiff; the defendants' counterclaim was dismissed with costs. Judgment delivered at Malindi on 8th February 2023 by M.A. Odeny, Judge.

Key legal issues

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01

Whether the plaintiff proved ownership of the suit property by a valid transfer from the vendor

Holding

The plaintiff proved he is the rightful owner; the deceased sold the land to the plaintiff and a legal transfer was signed by the vendor Kilifi Plantations Limited and the plaintiff

Reasoning

PW2, a director of Kilifi Plantations, confirmed the company sold the plot to the deceased, who instructed a direct transfer to the plaintiff's company Bii Enterprises, executed on 26th April 2010 while the deceased was alive. The documents produced by the defence, save for the grant, all authenticated the transaction between the deceased and the plaintiff. DW2 admitted the registered owner at the time the title came into the family's hands was Kilifi Plantations.

p. 4
02

Whether the suit property formed part of the deceased's estate capable of transmission to the 2nd Defendant

Holding

It did not; the property remained registered in the vendor's name when the grant was confirmed, so it could not be administered as part of the estate

Reasoning

At the date of the certificate of confirmation of grant the suit property was still registered in the name of Kilifi Plantations Ltd. The 1st Defendant's own letter to the Registrar complaining of the provisional certificate confirmed the original title he held was still in the vendor's name. The court found the 1st Defendant sought to benefit where he did not sow by including the sold property in the estate.

p. 4

Legal principles established

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  • Property still registered in the name of a vendor at the time a certificate of confirmation of grant is issued cannot form part of the deceased's estate for administration

Court orders

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  1. 1.A permanent injunction restraining the 1st Defendant from transferring Plot No. Subdivision No. Group V/605 (Original No. 507/98) with Land Survey No. 248358, being CR 39322/1 to the 2nd Defendant, and an order that the 1st Defendant surrender the original title document to the Plaintiff within 14 days
  2. 2.A declaration that the Plaintiff is the rightful owner of the suit plot, and the 4th Defendant directed to transfer the suit plot to the Plaintiff
  3. 3.The 1st and 2nd Defendants to pay costs of the suit
  4. 4.The defendants' counterclaim dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 rule 1
Jurisdiction invoked
Original civil jurisdiction over the land dispute (the judgment does not cite a specific statutory basis); suit commenced by Plaint dated 15th April 2016 with a defendants' counterclaim

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, "Birya t/a Bii Enterprises v Jilani (the Administrator of the Estate of Kevin Mwamuye Jilani) & 3 others (Environment & Land Case 85 of 2016) [2023] KEELC 574 (KLR)", Case Analysis (2023). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/574/eng@2023-02-08

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