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ELCPartially AllowedELC Suit (Amended Plaint dated 21st June 2017; file number not stated in judgment)· [2024] KEELC 4726 (KLR)

Nurani & another (Suing as the Legal Administrators of the Estate of Sadrudin Shamsudin Ismail Nurani) v Gulam & 2 others (Environment & Land Case 596 of 2014) [2024] KEELC 4726 (KLR)

Environment and Land Court
13 June 2024
13,175 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~53 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a 1998 fraudulent sale of estate land, handing the property back to the deceased's family 26 years later.

What this practically means

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Executive summary

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The Plaintiffs, administrators and beneficiaries of the estate of Sadrudin Shamsudin Ismail Nurani, challenged the 1998 sale and transfer of L.R. No. 1160/230, a 10-acre Karen property, by the 1st Defendant (a former executor under the deceased's will) to the 2nd Defendant, and the discharge of the 1994 charge in favour of the 3rd Defendant bank. They sought injunctions, declarations of nullity, rectification of the register, vacant possession, damages and costs. The Defendants raised jurisdictional objections: that the ELC lacks jurisdiction over succession matters, that the suit is res judicata given the succession cause and Deeds of Settlement, and that it is time-barred. The court held it has jurisdiction over the validity of conveyances to third parties; the suit was not res judicata as the 2nd and 3rd Defendants were not parties to the succession cause and the property was never listed in the schedule of assets; and limitation was postponed under Section 26 of the Limitation of Actions Act, the Plaintiffs having discovered the fraud only in 2014. On the merits, although an executor's title springs from the will and probate may issue to one executor alone, the 1st Defendant breached his fiduciary duty by concealing the prime property from the succession cause, selling it secretly, failing to value it and misapplying about KShs. 6 million of the purchase price. The 2nd Defendant's failure to conduct basic due diligence implicated it in the fraud. Fraud was strictly proved to the elevated standard. Section 93 of the Law of Succession Act does not shield fraudulent transfers. The suit partially succeeded: the court issued a permanent injunction, declared the 1998 transfer a nullity ab initio, ordered cancellation of entry 14 and rectification of the register into the Plaintiffs' names, declared the Plaintiffs absolute owners, ordered delivery of vacant possession, and awarded costs against the 1st Defendant only.

Key legal issues

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01

Jurisdiction of the ELC over a land dispute arising from a succession matter

Holding

The ELC has jurisdiction where a suit concerns the validity of a conveyance of estate property to third parties; succession-court matters between administrators and beneficiaries are outside its realm

Reasoning

Article 162(2)(b) and Section 13 of the ELC Act confer jurisdiction over title to land. Citing Beatrice Atieno Ongadi and Re Estate of Alice Mumbua Mutua, the court held the probate court determines assets, survivors and distribution, while claims by and against third parties fall under the Civil Procedure Act structures. The validity of the charge, discharge and sale to third parties therefore lies with the ELC.

p. 14
02

Whether the suit is res judicata given the prior succession cause and Deeds of Settlement

Holding

The suit is not res judicata because the 2nd and 3rd Defendants were not parties to the succession cause, the suit property was never listed in the schedule of assets, and the issue of fraud never arose there

Reasoning

Applying Section 7 of the Civil Procedure Act and the conjunctive five elements in Invesco Assurance and John Florence Maritime, the court found no former final determination on the same issues between the same parties. The property was not subject to the Deeds of Settlement, and the fraud issue never arose in the succession cause.

p. 15
03

Whether the suit is time-barred under the Limitation of Actions Act

Holding

The suit is not time-barred; the Plaintiffs only discovered that the suit property belonged to their father and had been transferred in 2014, invoking Section 26 (fraud) extension

Reasoning

The court examined the 2003 affidavit of the 2nd Plaintiff in HCCC 393 of 2003 and found it did not disclose the suit property, the charge, or the sale. Jirongo's 2004 affidavit mentioning the property was not shown to have been brought to the Plaintiffs' attention. Section 26 postpones limitation until discovery or reasonable discoverability of fraud, which occurred only in 2014.

04

Whether the 1st Defendant lawfully sold the suit property to the 2nd Defendant

Holding

The sale was fraudulent and a nullity ab initio: the 1st Defendant concealed the property from the succession cause, sold secretly without a valuation, and misapplied part of the purchase price; the 2nd Defendant failed basic due diligence

Reasoning

Although an executor's powers vest from death under Sections 79-80 LSA and probate may issue to one executor alone, the 1st Defendant breached his fiduciary duty by omitting the suit property from the List of Assets, conveying it secretly, failing to value it, and misapplying KShs. 6 million of the price. Fraud was strictly proved; Section 93 LSA does not protect fraudulent dealings. The 2nd Defendant's failure to search, value or investigate implicated it in the fraud.

p. 21
05

Whether charged property is free property of the estate

Holding

Charged property is free property; the deceased's right of redemption survives death and devolves to personal representatives

Reasoning

Relying on Marteve Guest House Limited v Njenga, the court distinguished Cecilia Igoki Nyaga and held the deceased's registered title and right of redemption were not terminated by death, so the 1st Defendant was obliged to disclose the suit property in the succession cause.

p. 20

Legal principles established

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  • Charged property constitutes free property under the Law of Succession Act because a deceased's right of redemption does not become extinct upon death
  • An executor's title dates from the death of the testator and springs from the will, not from the grant of probate; a grant of probate validates intermediate acts of the executor
  • Allegations of fraud must be pleaded and strictly proved to a standard higher than a balance of probabilities
  • Section 93 of the Law of Succession Act does not validate fraudulent transfers by a personal representative; a fraudulent transfer can be invalidated
  • The ELC has jurisdiction over disputes concerning the validity of conveyances of a deceased's property to third parties, while the probate court handles disputes between personal representatives and beneficiaries

Court orders

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  1. 1.A permanent injunction restraining the Defendants from dealing with, disposing of, alienating or interfering with L.R. No. 1160/230 (Original Number 1160/11/20).
  2. 2.A declaration that the sale and transfer of the suit property dated 14th April 1998 executed by the 1st Defendant and the 2nd Defendant was illegal, unlawful, fraudulent and a nullity ab initio.
  3. 3.A rectification order directing the Commissioner of Lands and/or the Chief Land Registrar to cancel entry number 14 registered on 22nd April 1998 transferring the suit property to the 2nd Defendant.
  4. 4.A declaration that the Plaintiffs as legal administrators of the Estate of Sadrudin Shamsudin Ismail Nurani are the absolute owners of the suit property.
  5. 5.A mandatory injunction directed at the 2nd Defendant to deliver vacant possession of the suit property to the Plaintiffs.
  6. 6.A mandatory injunction directed at the Chief Land Registrar to execute such instruments and make such entries as necessary to give effect to the transfer into the names of the Plaintiffs as legal administrators.
  7. 7.Costs of the suit to be borne by the 1st Defendant.
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of 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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Cite this brief

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Cite this brief

Caselaw, "Nurani & another (Suing as the Legal Administrators of the Estate of Sadrudin Shamsudin Ismail Nurani) v Gulam & 2 others (Environment & Land Case 596 of 2014) [2024] KEELC 4726 (KLR)", Case Analysis (2024). ELC Suit (Amended Plaint dated 21st June 2017; file number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4726/eng@2024-06-13

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