Mululu & 4 others v Barasa & 2 others (Environment and Land Appeal 3 of 2023) [2024] KEELC 6749 (KLR)
The bottom line
#Kenya's Environment and Land Court voided land sale agreements signed before a deceased's estate grant was confirmed, but denied costs because sellers intermeddled equally.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to frame issues vitiates the trial judgment
Failure to frame issues is an irregularity curable on first appeal
Order 21 Rules 4 and 5 require judgments to contain a concise statement of the case, points of determination, decision and reasons. The trial magistrate did not frame issues as required under Order 2 Rule 5, but analyzed the evidence on record. The deficiency in failing to frame issues can be corrected by the first appellate court, and this court corrected it in the present appeal.
Whether the Respondents' suit was statute barred
The claim was not time barred because it was founded on fraud, attracting Section 26 of the Limitation of Actions Act
Although actions to recover land are governed by the twelve-year period in Section 7 of the Limitation of Actions Act, the Respondents' plaint dated 31st August 2021 pleaded fraud. Section 26 provides that where an action is based on fraud, limitation does not begin to run until the plaintiff discovered or could with reasonable diligence have discovered the fraud. The claim was therefore not statute barred.
Whether the Respondents are entitled to the portions claimed
No - the sale agreements amounted to intermeddling in contravention of Sections 45 and 82 of the Law of Succession Act and are void
The deceased died on 25/03/1995, the grant issued on 17/9/2004 and was only confirmed on 29/6/2017. The 1st Appellant's sale agreements between 1998 and 2005, in which the 2nd to 5th Appellants were witnesses, offended the mandatory prohibition on intermeddling and on selling immovable property before confirmation of grant. Such agreements are invalid, incurably bad and confer no title on the purchasers.
Legal principles established
#- A first appellate court must reconsider and evaluate the evidence and reach its own conclusions, while making allowance for not having seen or heard the witnesses
- An act done in contravention of a statutory prohibition is void, a nullity and not a mere irregularity
- Sale of immovable property of a deceased person before confirmation of grant is prohibited under Section 82(b)(ii) of the Law of Succession Act, and such transactions are invalid even where entered into by holders of an unconfirmed grant
Court orders
#- 1.Appeal allowed
- 2.Judgment and decree of the trial court dated 19th July 2023 allowing the Respondents' claim set aside by allowing the appeal in its entirety
- 3.No order as to costs, the Appellants being equally to blame for intermeddling with the estate
- On appeal from
- Chief Magistrate's Court, Bungoma
- Bungoma CM's ELC Case No. 62 of 2021
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over appeals from magistrates' courts in environment and land matters
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mululu & 4 others v Barasa & 2 others (Environment and Land Appeal 3 of 2023) [2024] KEELC 6749 (KLR)", Case Analysis (2024). Bungoma ELC Appeal (memorandum of appeal dated 25th July 2023) arising from Bungoma CM's ELC Case No. 62 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6749/eng@2024-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.