Cherere v Wandarwa & another (Enviromental and Land Originating Summons 18 of 2020) [2024] KEELC 5445 (KLR)
The bottom line
#A Kenyan court refused to enforce a 2001 land sale made before the seller's father's estate was distributed, but ordered the seller to refund the buyer's money with interest.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant acquired the suit land by adverse possession
No. His entry was founded on a sale agreement that was null and void under Section 45 of the Law of Succession Act, so time could not run in his favour.
The suit land was registered in the name of the 1st Respondent's deceased father, who died intestate in 1992. At the time of the 18th June 2001 sale agreement the 1st Respondent was neither the registered proprietor nor an administrator of the estate. Dealing with free property of a deceased person without a grant is intermeddling and a nullity. Since the claim was founded on purchase, time runs from payment of the final instalment, but no limitation period can run on an illegality; the court cannot enforce or give effect to a void transaction even after twelve or more years of possession.
Whether the Applicant was entitled to damages for breach of the 2001 sale agreement
No. The agreement being null and void ab initio for contravening Section 45 of the Law of Succession Act, it is unenforceable and no breach arises.
A contract that contravenes a statute is illegal and void ab initio. Having found the sale agreement over a deceased person's property before succession proceedings was null and void, the court found it unenforceable and declined to award damages for breach.
Whether the 1st Respondent should be allowed to benefit from an illegality to which he was a party
No. Invoking its inherent jurisdiction and prayer d, the court ordered the 1st Respondent to refund the purchase price monies received, with interest.
Applying the policy that no person should profit from his own wrongdoing and that equity detests unjust enrichment, and noting the Applicant had not pleaded refund, the court used prayer d (any other or better relief) together with Section 3A of the Civil Procedure Act to direct the 1st Respondent to refund monies received as purported purchase price with interest from the date of judgment until payment in full.
Legal principles established
#- Where a claim founded on purchase is based on a contract with a person lacking capacity because the land was still estate property of a deceased person before confirmation of grant, the contract is a nullity and time for adverse possession cannot run on it
- Courts will not enforce an illegal contract even at the instance of a party implicated in the illegality, but neither will a defendant be allowed to benefit from his own wrongdoing
Court orders
#- 1.Prayers no. a, b and c of the Originating Summons dated 4th August 2020 are found not merited and are dismissed entirely
- 2.On prayer no. d, the 1st Respondent is directed to refund to the Applicant any money/monies he may have received from the Applicant as purported purchase price, with interest from the date of the Judgment until payment in full
- 3.Costs to the 2nd Respondent
- 4.The 1st Respondent to bear his own costs for having executed the contract for disposal of the suit property dated 18th June 2001 before the estate of his father was fully distributed
- Jurisdiction invoked
- Order 37 Rule 7 of the Civil Procedure Rules, Section 38 of the Limitation of Actions Act, Section 28 of the Land Registration Act and Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cherere v Wandarwa & another (Enviromental and Land Originating Summons 18 of 2020) [2024] KEELC 5445 (KLR)", Case Analysis (2024). Originating Summons dated 4th August 2020 (filed 10th August 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5445/eng@2024-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.