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High CourtAllowedNot stated in the judgment (Succession Cause - summons for confirmation pending)

Recho Langat v Esther Siwon & others (Estate of Langat)

High Court of Kenya
3 August 2020
AOA. N. ONGERI
768 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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Do not sell or lease any part of a deceased person's estate until the court formally confirms the grant of administration.

What this practically means

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Executive summary

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This was an interlocutory application dated 30 July 2018 in a succession cause before the High Court at Bomet, in which Recho Langat, daughter-in-law of the deceased and widow of Stanley Langat, sought a temporary injunction restraining the 1st to 4th Respondents from interfering with her claimed two-acre share of LR Kericho/Kyokong/236 pending the hearing of a summons for confirmation of grant. She deposed that a grant of letters of administration had issued to the petitioners on 29 July 2015, that on 26 July 2018 the 1st Respondent encroached on her portion, occupying about one acre containing her homestead and toilet, and that he had sold land to the 3rd and 4th Respondents, who are not beneficiaries. The 2nd Petitioner/Respondent replied, listing beneficiaries in two houses, asserting that a family meeting had been held and a surveyor engaged, and denying encroachment or intermeddling. The court framed three issues: intermeddling, entitlement to the injunction, and costs. Applying section 82(b) of the Law of Succession Act (no sale of immovable property before confirmation of grant) and section 45(1) (prohibition on intermeddling), the court found the petitioners had sold estate property to third parties before confirmation, amounting to intermeddling. Applying the Giella v Cassman Brown test, it found a prima facie case and irreparable harm. The application was allowed: the Respondents were restrained from surveying, partitioning, selling or leasing any part of the estate until confirmation; the petitioners were directed to file a summons for confirmation within 30 days; and the Respondents were ordered to pay the costs.

Key legal issues

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01

Intermeddling with the estate before confirmation of grant

Holding

The petitioners/Respondents intermeddled by selling estate land to third parties before confirmation of the grant.

Reasoning

The court applied sections 82(b) and 45(1) of the Law of Succession Act, which prohibit sale of immovable property before confirmation of grant and any unauthorised dealing with a deceased's free property. Since the grant had not been confirmed yet the property had been sold to third parties, the dealings amounted to intermeddling contrary to the statute.

p. 2
02

Entitlement to temporary injunction

Holding

The Applicant established the Giella v Cassman Brown conditions and was granted the injunction.

Reasoning

The court applied the settled Giella v Cassman Brown test: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience. It found the Applicant had established the grounds for an injunction and would suffer irreparably unless it was granted, and accordingly allowed the application.

p. 3

Legal principles established

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  • No immovable property of a deceased's estate may be sold before confirmation of grant.
  • No person may take possession of, dispose of or otherwise meddle with free property of a deceased person except as expressly authorised by law or a grant of representation.

Court orders

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  1. 1.Respondents restrained from surveying, partitioning, selling or leasing any part of the Estate until the grant is confirmed
  2. 2.Petitioners directed to file a summons for confirmation within 30 days
  3. 3.Respondents to pay the costs of the Application
Jurisdiction invoked
Law of Succession Act (probate and administration jurisdiction over the estate)

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, "Recho Langat v Esther Siwon & others (Estate of Langat)", Case Analysis (2020). Not stated in the judgment (Succession Cause - summons for confirmation pending). Source:

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