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ELCPartially AllowedKajiado ELC (not stated in judgment as extracted)· [2024] KEELC 4280 (KLR)

Malei & another (Suing on Behalf of the Estate of Oltokokoi Merit Katiyu - Deceased) v Gitari & another (Environment & Land Case 27 of 2020) [2024] KEELC 4280 (KLR)

Environment and Land Court
23 May 2024
4,342 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Land sold before a Kenyan succession grant is confirmed has no valid title, but a buyer who paid in full and occupied for years may still keep part of it.

What this practically means

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Executive summary

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The plaintiffs, children of the late Oltokokoi Merit Katiyu, sued to invalidate the sale and transfer of LR Kajiado/Kaputiei-North/800 (310 acres) to the 1st defendant by two of the deceased's sons who were administrators, and the subsequent subdivisions and sales creating parcels 64760–65103 sold to the 3rd to 167th defendants. The 1st defendant defended as an innocent purchaser for value (Kshs 3 million paid over 2003–2006, possession from 2006, fencing in 2006) and counterclaimed, retaining LR 43967 after selling LR 43966 to the 2nd defendant for Kshs 65 million, who subdivided it into 343 parcels. The court held the administrators had no capacity to sell before confirmation of the grant, contrary to section 82(b)(ii) of the Law of Succession Act, so the 1st defendant acquired no good title and could pass none to the 2nd defendant or the subsequent buyers; Article 40(6) does not protect unlawfully acquired property (Dina Management). However, setting aside the grant did not ipso facto invalidate the sale. Applying Willy Kimutai Kitilit v Michael Kibet, the receipt of the full purchase price and occupation with consent created a constructive trust over 50 acres admitted sold. The court allowed prayers (b)–(e) of the amended plaint (nullifying subdivisions and declarations of invalidity), allowed the counterclaim only as to 50 acres to be carved from LR 800, and ordered each party to bear its own costs.

Key legal issues

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01

Capacity of administrators to sell estate land before confirmation of grant

Holding

They had no capacity; the sale of 9/7/2003 preceded confirmation on 8/6/2006 and violated section 82(b)(ii) of the Law of Succession Act

Reasoning

The sale agreement predates the confirmed grant by almost three years. Section 82(b)(ii) expressly prohibits sale of immovable property before confirmation. Case law suggesting a personal representative may sell before confirmation is per incuriam since written law ranks above case law under the Judicature Act hierarchy of norms.

p. 8
02

Derivative title and bona fide purchaser doctrine

Holding

A seller without good title cannot pass title; Article 40(6) does not protect unlawfully acquired property

Reasoning

Applying Dina Management Ltd v County Government of Mombasa, once the root of title is shown to be unlawful, neither the first purchaser nor downstream buyers can claim bona fide purchaser protection. The 1st defendant could not pass title to the 2nd defendant, nor the 2nd defendant to the 143 purchasers.

p. 8
03

Effect of setting aside the confirmed grant on the sale and transfer

Holding

Setting aside the grant did not ipso facto invalidate the sale and transfer; the court examined the sale on its own merits

Reasoning

The court found the High Court nullification of the succession process did not automatically unwind the conveyance. Had the sale not been contrary to statute, the court might have reached a different conclusion; but the statutory prohibition on pre-confirmation sales governed the outcome.

p. 8
04

Constructive trust / proprietary estoppel over the admitted 50 acres

Holding

Equity carved out 50 acres for the 1st defendant based on receipt of the purchase price and possession with consent

Reasoning

Following Willy Kimutai Kitilit v Michael Kibet, receipt of the full purchase price and putting the buyer in possession creates a constructive trust overriding the Land Control Act. It would be unconscionable, some twenty years later, to refund Kshs 3 million that can no longer buy equivalent land.

p. 9

Legal principles established

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  • No immovable property forming part of a deceased's estate may be sold before confirmation of the grant
  • A purchaser cannot derive a better title than an invalid root; constitutional protection of property does not extend to unlawfully acquired property

Court orders

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  1. 1.The defendants in the counterclaim to transfer a parcel of land measuring 50 acres to the 1st defendant in the main suit from LR Kajiado/Kaputiei-North/800, failing which the deputy registrar of this court to execute all necessary instruments to effect the said transfer
  2. 2.Prayers (b), (c), (d) and (e) of the amended plaint dated 29/10/2020 allowed as prayed
  3. 3.Counterclaim dated 19/6/2020 allowed only in terms of the 50 acres to be carved from the suit land
  4. 4.Each party to bear its own costs

Authorities

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Legislation

  • Law of Succession ActSection 82 (b)(ii)
  • Judicature ActSection 3 (1)(b)
  • Constitution of Kenya, 2010Article 40 (6); Article 10 (1)(b)
  • Land Control Actgeneral reference
  • Civil Procedure RulesOrder 18 Rule 2(2)

Cases cited (3)

  • In the Estate of Julius Mimano (deceased)
    (2019) eKLR
  • Dina Management Limited v County Government of Mombasa and 5 others
    judgment dated 15/7/2021
  • Willy Kimutai Kitilit v Michael Kibet
    Civil Appeal No 51 of 2015
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to title to land, following referral of the dispute by the High Court (Misc. Case No 18 of 2019).

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, "Malei & another (Suing on Behalf of the Estate of Oltokokoi Merit Katiyu - Deceased) v Gitari & another (Environment & Land Case 27 of 2020) [2024] KEELC 4280 (KLR)", Case Analysis (2024). Kajiado ELC (not stated in judgment as extracted). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4280/eng@2024-05-23

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