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Case Brief · caselaw.co.ke
High CourtAllowedNot stated in the judgment (Succession Cause; application dated 22nd August 2018)

In re Estate of the Deceased (Administrator v Respondents) – Application for Injunction and Stay of Criminal Proceedings

High Court of Kenya
11 June 2019
870 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Estate land cannot be sold by family members without court authority, and administrators are protected from criminal charges while managing the estate.

What this practically means

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Executive summary

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The Applicant, administrator of a deceased's estate under a confirmed grant, applied by notice of motion dated 22nd August 2018 for an injunction restraining the Respondents from trespassing on land at Chepkaos Farm pending rectification of the grant, and for a stay of criminal proceedings in Kitale Criminal Case No. 2596 of 2018. The Applicant's evidence included a 2002 agreement showing the deceased purchased 1½ acres from Amos Kiprono Kerich for Kshs. 151,500, an affidavit by Kerich confirming the sale, and family meeting minutes. The 1st and 2nd Respondents relied on an agreement purchasing ½ acre from the 3rd Respondent for Kshs. 210,000, contending the land belonged to the late Kipkerich Lagat, not the deceased's estate. The court found the 3rd Respondent, a daughter-in-law of the deceased, had no capacity to sell land belonging either to the deceased's estate or to the Lagat estate, and had not filed any affidavit. The Respondents' proper recourse was to await rectification of the grant or lodge claims in the Lagat estate. The court held the administrator had a legal duty to collect the estate and prevent intermeddling, and that in a purely civil matter he should not face criminal charges while performing that duty. The application was allowed: the Respondents were restrained from trespassing on the 1½ acre Chepkaos Parcel No. 5 pending rectification; the Applicant was ordered to apply for rectification within 60 days; the criminal case was suspended; costs were in the cause.

Key legal issues

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01

Capacity of the 3rd Respondent to sell the suit land

Holding

She had no capacity to sell land belonging either to the deceased's estate or to the estate of the late Kipkerich Lagat; she did not even file an affidavit in support or opposition.

Reasoning

The court found the 3rd Respondent was a daughter-in-law to the deceased whose estate was under a confirmed grant administered by the Applicant. She sold land without the Applicant's consent or the court's authority. Even assuming the deceased had not purchased from Amos Kerich, the land would belong to the late Lagat's estate, which she could not dispose of either. Purchasers' proper recourse was to await rectification of the grant or lodge claims in the Lagat estate.

p. 1
02

Stay of criminal proceedings against the administrator

Holding

The criminal proceedings in Kitale Criminal Case No. 2596 of 2018 were suspended/stopped because the Applicant was performing his lawful duty of collecting the estate in a purely civil matter.

Reasoning

The court reasoned that the Applicant's role as administrator imposed a duty to collect the estate and prevent intermeddling. Since the matter before it was purely civil unless proved to the contrary, there was no reason the administrator should face criminal charges for undertaking that duty.

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Legal principles established

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  • A daughter-in-law of a deceased person has no capacity to dispose of land belonging to the deceased's estate or to another estate without authority of the administrator or the court.
  • An administrator has a legal duty to collect the estate and prevent intermeddling with it.
  • An administrator performing his duty of collecting an estate should not be subjected to criminal process in a purely civil matter.

Court orders

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  1. 1.Respondents jointly and severally restrained from trespassing on the portion of land measuring 1 ½ Chepkaos Parcel No. 5 registered in the name of Kipkerich Lagat pending filing and rectification of grant by the Applicant
  2. 2.Applicant ordered to apply for rectification of the grant within 60 days from the date of the ruling
  3. 3.Kitale Criminal Case No. 2596 of 2018 suspended and/or stopped pending further orders and/or directions from the court
  4. 4.Costs in the cause
Jurisdiction invoked
Succession jurisdiction of the High Court over administration of estates (confirmed grant; rectification of grant application pending)

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, "In re Estate of the Deceased (Administrator v Respondents) – Application for Injunction and Stay of Criminal Proceedings", Case Analysis (2019). Not stated in the judgment (Succession Cause; application dated 22nd August 2018). Source: 

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