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ELCPartially AllowedEnvironment and Land Appeal E027 of 2023· [2024] KEELC 6896 (KLR)

M’Mukindia v Bundi (Environment and Land Appeal E027 of 2023) [2024] KEELC 6896 (KLR)

Environment and Land Court of Kenya
16 October 2024
6,399 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Kenya's land court confirmed that you cannot sell inherited land before a grant of probate is confirmed, and such deals are legally void.

What this practically means

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Executive summary

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This is a first appeal from a magistrates' court which had allowed the respondent's claim for refund of a deposit of Kshs.134,456/= plus liquidated damages under a sale agreement dated 18.4.2019, under which the appellant allegedly agreed to sell ½ acre to be excised from L.R No. Abothuguchi/Kithirune/114 at Kshs.620,000/=. The appellant denied the sale, asserting she signed what she believed was a lease under duress and misrepresentation to raise decretal sums owed by her son, and that she had no capacity to sell estate land. On appeal, the court first confirmed the appeal was competent, holding that Sundays and public holidays are excluded in computing the thirty-day filing period. On capacity, the court held that at the date of the sale the appellant was a mere beneficiary of the estate in Meru H.C Succession Case No. 75 of 2000, the confirmed grant being held by PW 3, and the amended grant of 14.8.2019 could not operate retrospectively; the agreement was therefore a nullity tantamount to intermeddling under Section 45 of the Law of Succession Act. The court further found that although special damages must be specifically pleaded and proved, the respondent failed to particularize or prove the sums claimed by receipts, and could not establish breach. The appeal was allowed with costs in both courts.

Key legal issues

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01

Whether the appellant had capacity to sell the suit land

Holding

The appellant, being a beneficiary and not the legal administrator, had no capacity on 18.4.2019 to sell the estate property; the sale was a nullity tantamount to intermeddling

Reasoning

Free property of a deceased person can only be dealt with through the legal representative. The confirmed grant vesting authority was in PW 3, and the amended grant of 14.8.2019 could not act retrospectively to cure the nullity of an agreement executed on 18.4.2019. The presence of the stepson-administrator did not validate it; a beneficiary cannot arrogate the administrator's powers, and the transaction offended Section 45 of the Law of Succession Act.

p. 9
02

Whether there was a sale or a lease agreement

Holding

The court found on the evidence of PW 2, PW 3 and PW 4 that the transaction was a sale, not a lease, notwithstanding the appellant's claim of misrepresentation

Reasoning

The objective evidence of the advocate who drew the agreement and the witnesses present at execution pointed to a sale; the purchase price of Kshs.620,000/= was inconsistent with a lease, and the appellant's signature had been confirmed by a document examiner. However, this finding was overtaken by the finding on capacity and illegality.

p. 4
03

Whether breach and special damages were pleaded and proved

Holding

The respondent failed to prove breach or the special damages claimed; receipts were not produced and the nexus between payments and the appellant was not established

Reasoning

The plaint lacked particulars of the special damages; no receipts for Kshs.620,000/= were produced; the demand letters mentioned different figures; PW 1 and PW 4 contradicted each other on payments to third parties; and the clause requiring vacant possession by 1.6.2019 was impossible when no confirmed grant existed.

p. 10
04

Whether the appeal was competent despite alleged late filing

Holding

The appeal was competent; the computation of the thirty days excludes Sundays and public holidays under Order 50 Rule 2 and Section 57(b)

Reasoning

Relying on the Interpretation and General Provisions Act and the Civil Procedure Rules, the court held that Sundays and public holidays are excluded in computing the thirty-day period under Section 79G, validating the appeal's competency.

p. 7

Legal principles established

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  • A beneficiary of a deceased's estate has no legal capacity to transact in estate land before confirmation of grant and identification of their share
  • A void act is a nullity requiring no court order to set aside
  • Once a defendant's signature is proved, the burden shifts to the defendant to prove fraud, duress or other vitiating defence
  • Special damages must be specifically pleaded and proved

Court orders

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  1. 1.The appeal is allowed
  2. 2.Costs of the lower court and of this appeal are awarded to the appellant

Authorities

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Legislation

  • Civil Procedure ActSection 78
  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 57 (b)
  • Civil Procedure RulesOrder 42
  • Civil Procedure RulesOrder 50 Rule 4 and Order 50 Rule 2
  • Civil Procedure RulesOrder 2 Rule 4 (1) and (2)
  • Land Control ActCap 302
  • Law of Succession ActSections 45, 55, 71 and 82 (b)(ii)
  • Law of Succession ActSection 82
  • Law of Contract ActSection 3 (3)
  • Land ActSection 38
  • Interpretation and General Provisions ActSection 57 (b)
  • Judicature ActSection 10 (High Court Practice and Procedure Rules made thereunder)

Cases cited (38)

  • Abok James Odera vs J. P Machira
    [2013] eKLR
  • Gitobu Imanyara vs Attorney General
    [2016] eKLR
  • Peters v Sunday Post
    [1958] E.A 424
  • African Cotton Industries Ltd v Rural Development Services Ltd
    [2021] eKLR
  • Mohamed Ahmed Abdun & another v Mini Bakeries MSA Ltd
    [2019] eklr
  • Lynch v D.P.P of Northern Ireland
    [1975] AC 653
  • RTS Flexible Solutions Ltd v Molkerei Alois Muller GmbH & Co. KG (UK Production
    2010) UKSC 14 (45)
  • Alfred M.O Michira v Ms. Gesina Power Mills Ltd
    Civil Appeal No. 197 of 2001 [2004] eKLR
  • Amesnet Enterprises Ltd & others v Susan Wanjiru Wangendo
    [2021] eKLR
  • Esther Kabugi Njuguna v Martha Chebet and another
    [2020] eKLR
  • Madowo v Oluja & another
    Civil Appeal No. E557 of 2022 (KEHC) 1205 (KLR)
  • Farm Hand Engineering v Kenya Industrial Estates
    [2005 eKLR
  • Housing Company of E.A Ltd v Board Trustees National Social Security Fund & other
    [2018] eKLR
  • Caltex Oil (K) Ltd v Rono Ltd
    [2016] eKLR
  • Mohamad Ali & another v Sagoo Radiators Ltd
    [2013] eKLR
  • Khan v Singh
    [1985] KLR 716
  • Kenya Ports Authority vs Maur Abdalla Bwanamka
    (2018) eKLR
  • Stok Contribution Ltd vs Erick Odhiambo Odoga
    (2022) eKLR
  • KRA & others v Mt Kenya Bottlers & others
    (application) 12 E02 of 20221 (2022) KESC 3 (KLR) (10th February 2022) (Ruling)
  • Longinus Oroni Murunga v David Masika Mafumbo
    [2017] eKLR
  • Ritho v Karithi & another
    [1988] KLR 237
  • Gharib Suleman Gharib vs Abdulrahman Mohamed Agil
    LLR No. 750 (CAK) Civil Appeal No. 112 of 1998
  • National Bank of Kenya v Pipe Plastic Samkolit (K) Ltd
    [2002] E.A 503
  • Mamta Peesh Mahajan (Suing As Estate of the late Peeush Premlal Mahajan v Yashwant Kumari Mahajan
    [2017] KEHC [2022] KLR
  • Rufale v Umon Manufacturing Co.
    [1918] LR 1 KB 59
  • Kuria Kiarie & others vs Sammy Mogera
    [2018] eKLR
  • Stephen Onyango Achola & another v Edward Hongo Sule and another
    [2004] eKLR
  • Jayantilala Lalji Ghandi & another v Mavji Ruda
    [1986] eKLR
  • John Mburu v Consolidated Bank of (K)
    [2018] eKLR
  • KCC v S.K Macharia & others
    [2008] eKLR
  • PAO and others v Lau Liu & another
    [1979] 3 ALL ER 65
  • Re-estate of Isaac Kaburu Marete (deceased)
    [2017] eKLR
  • Estate of M'Ajogi M'Ikiugu alias Ikiugu Ajogi (deceased)
  • Macfoy v United Africa Co. Ltd
    [1961] 3 ALL ER 1169
  • Kamau v Kiarie & another (Legal representative of the estate of Naomi Wambui Kiarie)
    [2024] KEELC 222 (KLR) (25th July 2024 (Judgment)
  • Zacharia Wambugu Gathimu vs John Ndugu Maina
    (2019) eKLR
  • Re-estate of Muriira Karigicha (deceased)
    [2018] eKLR
  • Re-estate of Ngugi Muchugu Karuu (deceased)
    [2019] eKLR
On appeal from
Magistrates' Court at Meru
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction under Section 78 of the Civil Procedure Act and Order 42 of the Civil Procedure Rules

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, "M’Mukindia v Bundi (Environment and Land Appeal E027 of 2023) [2024] KEELC 6896 (KLR)", Case Analysis (2024). Environment and Land Appeal E027 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6896/eng@2024-10-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.