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ELCDismissedEnvironment and Land Court Appeal (Machakos) arising from Machakos MC ELC No. 12 of 2022· [2024] KEELC 5282 (KLR)

Muthoka & another v Makau & 3 others (Environment and Land Appeal E028 of 2022) [2024] KEELC 5282 (KLR)

Environment and Land Court
10 July 2024
4,402 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was an interlocutory appeal to the Environment and Land Court at Machakos against a ruling of Senior Resident Magistrate B. Bartoo delivered on 14th July 2022 in Machakos MC ELC No. 12 of 2022, dismissing the appellants' application for a temporary injunction restraining the 1st respondent from interfering with part of Mavoko Town Block 3/122. The appellants, plaintiffs in the lower court, claimed they purchased 0.625 acres of the suit property on 9th January 2014 from the 2nd defendant and that a constructive trust arose in their favour. The respondents opposed, contending the property belonged to the estate of the late Justus Makau Mbuva, that the sale occurred before confirmation of grant in Machakos P&A No. 1083 of 2012 and was therefore unlawful, and that the appellants failed to conduct due diligence. The court identified the single question as whether the trial court properly exercised its discretion. Applying Mbogo v Shah and the Giella v Cassman Brown test as restated in Nguruman, the court found the sale contravened section 82(b)(ii) of the Law of Succession Act; that the 2nd respondent, not being the registered proprietor, lacked capacity to sell; that the sale agreement was silent on ownership and reeked of fraud, disqualifying the appellants as bona fide victims; and that no constructive trust arose, there being no privity with the other respondents. Recognition of other pre-confirmation sales by consent of beneficiaries could not legalise the appellants' transaction. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Interference with the trial court's exercise of discretion

Holding

The trial magistrate properly exercised her discretion and the appellate court had no reason to interfere

Reasoning

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.

p. 8
02

Constructive trust on facts of a pre-confirmation sale

Holding

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

Reasoning

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.

p. 8
03

Lawfulness of sale of a deceased's immovable property before confirmation of grant

Holding

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

Reasoning

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.

p. 7
04

Prima facie case for temporary injunction

Holding

The appellants failed to demonstrate a prima facie case since their suit rested on constructive trust which was not demonstrated

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondents

Authorities

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Legislation

  • Law of Succession ActSection 82(b)(ii)

Cases cited (13)

  • Mulemi v. Angweye & Another
    [2017] KECA 214 (KLR)
  • Mbogo & Another v. Shah
    [1968] EA 98
  • Re Estate of Konini Ole Kimantiru (Deceased)
    [2018] eKLR
  • Giella v. Cassman Brown & Company
    [1973] EA 358
  • Mrao Ltd v. First American Bank of Kenya Limited & 2 Others
    [2003] KLR 125
  • Nguruman Limited v. Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Pius Kipchirchir Kogo v. Frank Kimeli Tenai
    [2018] eKLR
  • Twalib Hatayan & Another v. Said Saggar Ahmed Al-Heidy & Others
    [2015] eKLR
  • Assanand v. Pettitt (No. 3)
    [1978] eKLR
  • Waithaka v. Industrial and Commercial Development Corporation
    [2001] eKLR
  • Eli Elmi Abdi v. Nairobi County Government
    [2018] eKLR
  • Raphael Mulinge Muthusi & 2 Others v. Mary Ndila Nyolo
    [2022] eKLR
  • United India Insurance Co. Ltd & Others v. East Africa Underwriters (Kenya) Ltd
    [1985] eKLR
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

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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, "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.