Muthoka & another v Makau & 3 others (Environment and Land Appeal E028 of 2022) [2024] KEELC 5282 (KLR)
The bottom line
#Buying land from someone selling a deceased person's property before probate is confirmed is unlawful, and Kenyan courts will not rescue such buyers.
What this practically means
#Executive summary
#Key legal issues
#Interference with the trial court's exercise of discretion
The trial magistrate properly exercised her discretion and the appellate court had no reason to interfere
The appeal concerned an exercise of discretion. Settled authority requires demonstration that the trial court misdirected itself in law, considered irrelevant matters, failed to consider relevant matters, or misapprehended facts leading to a wrong conclusion. The court found the magistrate properly applied the Giella test and the question of the 2nd respondent's capacity, so no basis for interference existed.
Constructive trust on facts of a pre-confirmation sale
No constructive trust arose because the appellants were not bona fide victims of the respondents' wrongdoing and the other respondents were not party to the sale agreement
A constructive trust is an equitable remedy guarding against unjust enrichment, requiring a wrongdoer and a victim. The sale agreement, though disclosing the title number, was silent on ownership and showed no nexus between vendor and property, failing the basic test of capacity to sell. As the appellants did not ascertain ownership, they could not be characterised as victims, and there was no privity of contract with the other respondents.
Lawfulness of sale of a deceased's immovable property before confirmation of grant
The appellants' transaction of 9th January 2014 occurred before confirmation of the grant and was unlawful; the 2nd respondent, not being the registered proprietor, had no capacity to sell
Section 82(b)(ii) of the Law of Succession Act prohibits sale of immovable property of a deceased person before confirmation of grant. The appellants' transaction predated confirmation and was therefore unlawful. The 1st respondent produced a title in the deceased's name, so the 2nd respondent had no capacity to sell what did not belong to him.
Prima facie case for temporary injunction
The appellants failed to demonstrate a prima facie case since their suit rested on constructive trust which was not demonstrated
Applying Giella v Cassman Brown as restated in Nguruman, the applicant must establish a prima facie case, irreparable injury and balance of convenience sequentially. Since the appellants' suit rested on a constructive trust that failed at the prima facie level, and their claim of discriminatory non-recognition of the pre-confirmation sale could not legitimise an unlawful transaction, no prima facie case existed.
Legal principles established
#- An appellate court will not interfere with the exercise of discretion by a trial court unless it is shown that the court misdirected itself in law, considered irrelevant matters, failed to consider relevant matters, or misapprehended facts, leading to a wrong conclusion
- No immovable property of a deceased person shall be sold before confirmation of grant under section 82(b)(ii) of the Law of Succession Act; a sale before confirmation is unlawful
- Recognition by consent of beneficiaries of other pre-confirmation sales does not validate an unlawful pre-confirmation sale
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondents
- On appeal from
- Senior Resident Magistrate's Court, Machakos
- Machakos MC ELC No. 12 of 2022
- Jurisdiction invoked
- First appellate jurisdiction over an interlocutory appeal from the magistrate's court in an environment and land matter
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muthoka & another v Makau & 3 others (Environment and Land Appeal E028 of 2022) [2024] KEELC 5282 (KLR)", Case Analysis (2024). Environment and Land Court Appeal (Machakos) arising from Machakos MC ELC No. 12 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5282/eng@2024-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.