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ELCPartially Allowed· [2024] KEELC 4180 (KLR)

Githiaka v Mwaura & 2 others (As the trustees of the family members of Erastus Mwaura Kiongi - Deceased) (Environment & Land Case 143 of 2022) [2024] KEELC 4180 (KLR)

Environment and Land Court
2 May 2024
1,970 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court voided a land sale made before a deceased owner's estate grant was confirmed, but ordered the sellers to refund the buyer's money.

What this practically means

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Executive summary

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The Plaintiff sued for specific performance of a sale agreement dated 14th September 2010 under which he purchased 4 acres to be hived off Land LR No 9363/25 for Kshs 6,000,000, paying Kshs 5,350,000 with a balance of Kshs 650,000 withheld because completion documents were not availed. He sought specific performance, a permanent injunction against sale to third parties, or alternatively damages for loss of bargain of Kshs 114,650,000 or a refund. The Defendants were served but neither entered appearance nor filed a defence; the Plaintiff's evidence stood uncontroverted, though he still bore the statutory burden of proof under Sections 107 and 108 of the Evidence Act. The court found that at execution of the agreement the suit property was registered in the name of the deceased Erastus Mwaura Kiongi and the Defendants, as trustees of the family, had no letters of administration or confirmed grant. Under Sections 55 and 82(b)(ii) of the Law of Succession Act, a sale of immovable estate property before confirmation of grant is null and void; applying Estate of Isaac Kaburu Marete and Macfoy v United Africa Co Ltd, the court held the agreement a nullity incapable of enforcement. Specific performance and injunctive relief were therefore refused. However, invoking Macharia Mwangi Maina v Davidson Mwangi on unjust enrichment, the court ordered the Defendants jointly and severally to refund Kshs 5,350,000, with costs of the suit and interest at court rates. Judgment signed, dated and delivered via Microsoft Teams on 2nd May 2024.

Key legal issues

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01

Validity of a sale agreement over estate property entered into before confirmation of grant

Holding

The agreement is a nullity and unenforceable; specific performance cannot issue

Reasoning

At execution of the agreement the title stood in the name of the deceased Erastus Mwaura Kiongi and the Defendants had no letters of administration, let alone a confirmed grant. Section 82(b)(ii) of the Law of Succession Act prohibits sale of immovable property before confirmation of grant, and Section 55 restricts distribution of capital assets. Relying on Estate of Isaac Kaburu Marete and Macfoy v United Africa Co Ltd, the court held the transaction void ab initio.

02

Whether the Plaintiff is entitled to a refund of monies paid under the void agreement

Holding

Yes - the Defendants must refund Kshs 5,350,000 jointly and severally, with costs and interest

Reasoning

Although the agreement was void, the Plaintiff paid Kshs 5,350,000 to the Defendants, who used the money yet sold the property to other parties. Relying on Macharia Mwangi Maina & 87 Others v Davidson Mwangi, the court held that allowing the Defendants to keep the money would amount to unjust enrichment, and equity affords a remedy.

p. 5

Legal principles established

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  • A sale of immovable property of a deceased person's estate before confirmation of grant is null and void
  • Uncontroverted evidence still carries the burden of proof on the plaintiff, but is weighty where uncontroverted
  • Equity will not permit unjust enrichment; a vendor who cannot transfer title must refund monies paid
  • A void act is a nullity requiring no court order to set aside

Court orders

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  1. 1.Refund of Kshs 5,350,000 paid to the Defendants
  2. 2.Costs of the suit
  3. 3.Interest at court rates

Authorities

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Legislation

  • Evidence ActSections 107 and 108
  • Law of Succession ActSection 82(b)(ii)
  • Law of Succession ActSection 55
  • Law of Succession ActSection 71

Cases cited (5)

  • Daniel Kenga Katana & 4 others v Dzitu Toto Bokole & 3 others
    [2022] eKLR
  • Peter Ngigi & Another (suing as legal representative of the Estate of Joan Wambui Ngigi) v Thomas Ondiki Oduor & Another
    2019 eKLR
  • Estate of Isaac Kaburu Marete (deceased)
    [2017] eKLR
  • Macfoy v United Africa Co. Ltd
    [1961] 3 All ER 1169
  • Macharia Mwangi Maina & 87 Others v Davidson Mwangi
    [2014] eKLR
Jurisdiction invoked
Original jurisdiction under Article 162(2)(b) of the Constitution (implied by the court's jurisdiction over land); not expressly stated in the judgment

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, "Githiaka v Mwaura & 2 others (As the trustees of the family members of Erastus Mwaura Kiongi - Deceased) (Environment & Land Case 143 of 2022) [2024] KEELC 4180 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4180/eng@2024-05-02

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