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ELCDismissedEnvironment & Land Case 453 of 2016· [2023] KEELC 19861 (KLR)

Ngeny v Kiarie & 2 others

Environment and Land Court
19 September 2023
3,707 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a 2016 land claim over a 1995 sale because the sellers had no legal right to sell and the buyer waited too long to sue.

What this practically means

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Executive summary

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The plaintiff sued the three defendants seeking an order compelling them to transfer and register Title Number Nakuru/Olenguruone/Amalo/183 in his favour, surrender of title documents, valuation by a Government valuer, or alternatively compensation at current market value. The claim arose from an agreement for sale dated 14 January 1995 over land registered in the name of the defendants' deceased father, William Kiarie Kabuu, for Kshs.1,045,000. The plaintiff paid Kshs.1,100,000 through the parties' mutual advocate, took possession as his residential home, lodged a caution in 2000, and pursued the advocate through the Advocates Complaints Commission, resulting in the advocate's disbarment. The defendants argued the suit was time barred under section 7 of the Limitation of Actions Act and that the agreement was void for want of Land Control Board consent. The parties proceeded by way of case stated and submissions on agreed facts. The court held the cause of action accrued when the agreement was signed, since a legal representative has no authority to dispose of a deceased's estate, and the contract claim was therefore barred by the six-year limitation period. It further held the agreement was a nullity and void ab initio as the defendants had no capacity to sell estate property before a grant, amounting to intermeddling contrary to section 45 of the Law of Succession Act. Constructive trust and proprietary estoppel were held inapplicable. The suit was dismissed with no orders as to costs.

Key legal issues

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01

Whether the suit is time barred

Holding

Suit is time barred; cause of action accrued when the agreement was signed, when the plaintiff discovered the defendants were not registered owners

Reasoning

The court held the cause of action accrued on signing the agreement in January 1995 because a legal representative has no authority to dispose of an estate of a deceased person. The claim, premised on contract, was subject to the six-year limitation period under section 4 of the Limitation of Actions Act. Filing in 2016, over 20 years later, was out of time.

p. 5
02

Whether the agreement was void ab initio

Holding

Yes; the defendants had no capacity to sell land registered in their deceased father's name and had not obtained a grant, amounting to intermeddling under section 45 of the Law of Succession Act

Reasoning

The defendants incorrectly alleged they were legal representatives of the estate when they had not obtained letters of administration. Citing Muriuki Hassan, Re Estate of John Gakunga Njoroge and Morris Mwiti Mburugu, the court held dealings with a deceased's free property before grant and confirmation constitute unlawful intermeddling and are nullities.

p. 7
03

Whether the agreement was void for lack of Land Control Board consent

Holding

The court declined to determine this, having found the agreement a nullity

Reasoning

The court found it unnecessary to consider the Land Control Act issue since the defendants were not registered owners and could not have approached the Land Control Board in 1995, having only obtained the grant in 2011. The agreement being a nullity, equitable doctrines could not apply.

p. 7
04

Whether the plaintiff is entitled to compensation or refund

Holding

No; the claim being time barred and the agreement null and void, the plaintiff is not entitled to refund or compensation

Reasoning

Although the court acknowledged the money paid could only be recovered as a refund if claimed within time, the claim was filed more than 20 years after accrual. The suit was therefore dismissed with no orders as to costs, the defendants having received money purporting to sell property they could not sell.

p. 7

Legal principles established

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  • A legal representative has no authority to dispose of an estate of a deceased person before a grant is issued and confirmed; such a transaction is a nullity and void ab initio
  • Where a sale agreement is a nullity, the purchaser's remedy is a refund of money paid and compensation for improvements, if claimed within the limitation period

Court orders

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  1. 1.Suit dismissed with no orders as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Law of Succession Actsection 45
  • Law of Succession Actsection 76
  • Law of Succession Actsection 82
  • Limitation of Actions Actsection 4
  • Limitation of Actions Act (Cap 22)section 7
  • Land Control Act (Cap 302)section 6

Cases cited (3)

  • Muriuki Hassan .v. Rose Kanyua and 4 others
    [2014] eKLR

    Purchasers from a beneficiary before succession cannot have their interests protected; remedy is suit against the beneficiary

  • Re Estate of John Gakunga Njoroge
    [2015] eKLR

    Contracts of sale of estate property before grant are invalid for offending sections 45 and 82 of the Law of Succession Act

  • Morris Mwiti Mburugu .v. Denis Kimathi M'Mburugu
    [2016] e KLR

    Intermeddling with a deceased's estate is unlawful and such transactions are liable to be nullified at the instance of innocent beneficiaries

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land disputes (Article 162(2)(b) Constitution)

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, "Ngeny v Kiarie & 2 others", Case Analysis (2023). Environment & Land Case 453 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19861/eng@2023-09-19

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