Makau (Suing as the Legal Representative of the Estate of Makau Kimeu - Deceased) v Nzile; Nzile (Plaintiff to the Counterclaim); Makau & 3 others (Defendant to the Counterclaim) (Environment & Land Case 69 of 2013) [2024] KEELC 6021 (KLR)
The bottom line
#A buyer who paid in full for land sold by heirs before they got a confirmed grant still won ownership through a constructive trust, defeating a later 'purchaser'.
What this practically means
#Executive summary
#Key legal issues
#Validity of sale of deceased's property before confirmation of grant
The sale of the suit property to the original defendant by the 2nd and 3rd defendants before confirmation of grant was void and unenforceable for want of capacity
Section 82 of the Law of Succession Act prohibits sale of immovable property before confirmation of grant, and Section 45 prohibits intermeddling. The vendors were not administrators at the time of the 2009 agreement and no grant had been confirmed, so they lacked capacity to sell; the contract was therefore void and unenforceable.
Constructive trust as equitable remedy despite non-compliance with the Law of Succession Act
The 2nd and 3rd defendants were beneficiaries who had been gifted the property, received the full purchase price and handed over the original title; equity imposed a constructive trust in favour of the original defendant
The vendors represented the property had been gifted to them, received the full purchase price and delivered the original title, executed transfer forms and succession applications. Allowing a vendor beneficiary to renege and retain property acquired through fraud would be unjust enrichment; Section 28(b) of the Land Registration Act makes registered land subject to overriding interests including trusts.
Bona fide purchaser for value without notice
The 4th defendant failed to prove he was a bona fide purchaser for value without notice
The 4th defendant produced no official search certificates despite alleging two searches; produced evidence of payment of only Kshs. 403,000 of a Kshs. 5,000,000 consideration; gave no proof of stamp duty payment; knew of and defied the status quo order; and was aware of the fraudulent Gazette Notice requiring a dead man to surrender title. His credibility was further impugned by the involvement of an advocate he denied using.
Tampering with land registry records
The court found the land registry records were tampered with, with the corrupt assistance of the Land Registrar, backdating the entry registering the 4th defendant
The official search of 5th October 2018 showed Patrick Ngewa Makau as registered proprietor, but the second search of 10th March 2020 obtained only after Cabinet Secretary intervention showed registration of the 4th defendant on 25th September 2018, a discrepancy the court attributed to interference with records to defeat the registered status quo order.
Legal principles established
#- A contract for sale of immovable property belonging to a deceased person before confirmation of grant is void and unenforceable
- Section 82 of the Law of Succession Act does not preclude a constructive trust where the sale was by a beneficiary of the property sold
- A bona fide purchaser must demonstrate due diligence, including obtaining an official search, and proof of payment of valuable consideration
Court orders
#- 1.A declaration that the doctrine of constructive trust applies to the purchase of LR. No. Athi River/Athi River Block 5/92 by the original defendant Muamba Mangati Nzile
- 2.Cancellation of the title for LR. No. Athi River/Athi River Block 5/92 formerly registered in the name of Makau Kimeu, later issued to Patrick Ngewa Makau and subsequently to Boniface Mwangi Wakiuru
- 3.Ancent Muisyo Makau and Patrick Ngewa Makau, as administrators of the estate of Makau Kimeu, to transfer the suit property to Muamba Mang'ati Nzile within 30 days, in default the Deputy Registrar to execute the requisite transfer documents
- 4.The plaintiff, 2nd and 3rd defendants and all persons claiming through them including the 4th defendant to vacate the suit property within 60 days, in default eviction and demolition of structures to issue
- 5.Costs of the counterclaim to be paid to the original defendant by the plaintiff and the 2nd, 3rd and 4th defendants
- 6.The plaintiff's suit dismissed with costs to the original defendant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (disputes relating to title to land)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makau (Suing as the Legal Representative of the Estate of Makau Kimeu - Deceased) v Nzile; Nzile (Plaintiff to the Counterclaim); Makau & 3 others (Defendant to the Counterclaim) (Environment & Land Case 69 of 2013) [2024] KEELC 6021 (KLR)", Case Analysis (2024). Machakos ELC 69 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6021/eng@2024-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.