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ELCDismissedEnvironment and Land Appeal E017 of 2022· [2023] KEELC 18897 (KLR)

Wafula (Suing as the Personal and Legal Representative of the Estate of the Late Henry Wafula Masibayi Deceased) v Masinde

Environment and Land Court
17 July 2023
2,457 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed you cannot buy or sell a dead person's land before succession is complete — such agreements are void, and buyers lose everything.

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 at Bungoma against the judgment of Hon. C.A.S Mutai, SPM in Bungoma CM-ELC No. 143 of 2018, in which the trial Magistrate struck out the plaintiff's suit with each party bearing his own costs. The underlying claim sought a permanent injunction restraining interference with a 50ft x 120ft portion of land comprised in LR No. E.Bukusu/S.Kanduyi/2461, registration of that portion in the plaintiff's names, or alternatively a refund of the purchase price at current market value, all founded on sale agreements dated July 21, 2004 and July 6, 2005. The appellant, suing as personal and legal representative of the estate of the late Henry Wafula Masibayi, argued that the purchase price was paid in full, that the purchaser took possession, and that the respondent held the land in trust. The respondent did not file submissions. Cherono J restated the duty of a first appellate court to re-evaluate the evidence, citing Selle v Associated Motor Boat Company Ltd. The court found that at the time of the first agreement the subject property was registered in the name of Alphonse Masinde (deceased), and that no certificate of search confirmed the vendor's ownership of either parcel. Applying Patel v Singh (No 2) and the decisions in Virginia Mwari Thuranira and Re Estate of Paul M'Maria, the court held that the sale of a deceased person's property before succession is prohibited by statute, rendering the contract illegal, void ab initio and unenforceable. The appeal was dismissed with costs.

Key legal issues

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01

Enforceability of contracts for sale of a deceased person's land before succession

Holding

The agreement of July 21, 2004 was illegal and unenforceable because the subject property was registered in the name of a deceased person and no grant had been obtained

Reasoning

The court applied the principle that contracts expressly or impliedly prohibited by statute are void ab initio. Citing Gikonyo J and the Re Estate of Paul M'Maria decision, it held that property of a deceased vests in the legal representative, and transactions in contravention of the Law of Succession Act are vitiated by illegality and cannot found an action.

p. 4
02

Duty of a first appellate court

Holding

The court is obliged to re-evaluate and re-examine the trial evidence and draw its own conclusions while making allowance for not having heard the witnesses

Reasoning

Relying on Selle v Associated Motor Boat Company Ltd, the court restated the classic first-appeal duty: it is not bound by the trial court's findings of fact where those findings fail to take account of material circumstances or probabilities, but must make due allowance for not having seen or heard the witnesses.

p. 3

Legal principles established

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  • A sale or disposal of a deceased person's property before the estate is succeeded is illegal and unenforceable
  • On a first appeal the court must re-evaluate and re-examine the evidence and make its own independent conclusions

Court orders

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  1. 1.The appeal is dismissed with costs

Authorities

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Legislation

  • Land Registration Actsections 38-41
  • Law of Contract Act
  • Law of Succession Actsection 82(b)(ii)
  • Constitution of KenyaArticle 40(6)

Cases cited (8)

  • Selle versus Associated Motor Boat Company Ltd
    (1968) EA 123

    Duty of a first appellate court to re-evaluate evidence and draw its own conclusions

  • C Abdul Hammed Shariff versus Ali Mohammed Solan
    (1955) 22 EACA 270

    Cited within Selle on appellate treatment of trial findings of fact

  • Patel v Singh (No2)
    (1987) KLR 585

    Effect of illegality upon a contract, citing Devlin LJ in Archbolds (Freightage) Ltd v S Spanglett Ltd

  • Archbolds (freightage Ltd V S Spanglett Ltd
    (1961) 1QB 374

    Threefold effect of illegality on contracts

  • Virginia Mwari Thuranira v Purity Nkirote Thuranira
    (2017) eKLR

    Sale agreement by a person without grant is null and void for violating section 82(b)(ii) of the Law of Succession Act

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

    Sale of immovable estate property before confirmation of grant is a statutory command with fatal consequences; transaction null and void

  • Reliable Electrical Engineers & Another v Kenya Petroleum Refinery Limited
    HCC 190 of 2005 (UR)

    Cited by the appellant in support of its claim

  • Maina & 87 Others v Kagiri
    (2014) eKLR

    Cited by the appellant in support of its claim

On appeal from
Chief Magistrate's Court at Bungoma (SPM)
CM-ELC No. 143 of 2018
Jurisdiction invoked
First appellate jurisdiction over the subordinate court under the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Wafula (Suing as the Personal and Legal Representative of the Estate of the Late Henry Wafula Masibayi Deceased) v Masinde", Case Analysis (2023). Environment and Land Appeal E017 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18897/eng@2023-07-17

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