Kaburu v Abdirahman & another (Civil Appeal 95 of 2017) [2018] KECA 280 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot legally sell a deceased person's land until the estate gets confirmed letters of administration, even if a deposit was paid and the buyer took possession.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge erred by holding that the sale agreement entered into by the 2nd respondent with the appellant was invalid for want of letters of administration
- 2.Whether the respondents had locus standi to institute the suit without letters of administration of the deceased's estate, this ground having been raised for the first time on appeal
Key legal issues
#Validity of a sale agreement over a deceased's land entered into without letters of administration
The agreement was null and void; the 2nd respondent had no legal capacity to sell her deceased father's land before obtaining and confirming letters of administration, and the trial judge's finding was anchored in law
The court applied sections 45, 55 and 82 of the Law of Succession Act. Section 45 renders dealings with a deceased's estate without representation intermeddling; section 55 prohibits distribution of capital assets before confirmation of the grant; section 82(b) restricts sale of immovable property before confirmation. The court endorsed the holding in Nirmal Singh Dhanji v Joginder Singh Dhanji that transfers undertaken before confirmation of grant offend section 55 and are void. The appellant knew the seller lacked letters of administration.
Locus standi of beneficiaries and purchaser-claimants to sue to preserve a deceased's estate without letters of administration
The respondents had the requisite locus standi: the 2nd respondent as a dependent and beneficiary seeking to preserve the estate, and the 1st respondent as a claimant purchaser who had lodged a caution. The point, raised for the first time on appeal, could not defeat the suit whose orders were conservatory in nature
The issue was not raised at trial, denying the appellate court a chance to appraise the trial judge's view on it. Nonetheless, the court defined locus standi by reference to Black's Law Dictionary as the right to bring an action or to be heard in a given forum, and found demonstrable rights: the 2nd respondent's right to protect her inheritance and the 1st respondent's purchaser's claim evidenced by a registered caution. Because the orders granted were conservatory, standing was made out.
Duty of a first appellate court to re-evaluate evidence
As a first appeal, the Court is enjoined to re-appraise all the evidence afresh and reach its own independent conclusions, while deferring to the trial judge's advantage of seeing and hearing witnesses
Relying on Rule 29 of the Court of Appeal Rules and the classic statement in Selle v Associates Motor Boat & Co, the court restated that a first appeal is by way of retrial: the court must reconsider and evaluate the evidence itself, but must make due allowance for not having seen or heard the witnesses, and will not disturb factual findings unless the trial judge failed to take account of particular circumstances or probabilities, or a credibility impression is inconsistent with the evidence generally.
Consequences of a party's failure to call a key witness (the advocate who received the deposit)
The appellant's failure to call the advocate to confirm disbursement of the Ksh.300,000 deposit compounded the issue, the 2nd respondent having denied receipt of the money
According to the exhibited agreement, the deposit was to be held in trust by the advocate upon execution of the agreement and used to process letters of administration. No letters were processed. Since the 2nd respondent denied receiving any money, the advocate's evidence was necessary to prove payment, but the appellant did not call him. In any event, proof of the deposit could not validate a null and void transaction.
Legal principles established
#- A party who has not obtained letters of administration has no legal capacity or authority to transact with or deal with the estate of a deceased person; any such transaction is an act of intermeddling under section 45 of the Law of Succession Act and is null and void
- No grant of representation confers power to distribute capital assets of a deceased's estate before the grant has been confirmed under section 71 of the Law of Succession Act
- Neither payment of a deposit nor the purchaser taking possession of the suit property can cure a sale agreement that is null and void for want of letters of administration
Court orders
#- 1.Appeal dismissed except on the issue of costs
- 2.Order of costs of the High Court set aside; no costs awarded to either party
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment and Land Court at Malindi
- Environment and Land Court Case No. 48 of 2014
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 29), as a first appellate court re-evaluating evidence
Relief refused
#Setting aside the finding that the sale agreement was null and void
A party without letters of administration has no capacity to transact with a deceased's estate; the agreement offended sections 45, 55 and 82 of the Law of Succession Act
Costs of the appeal and of the suit in the High Court
The court declined to award costs to the respondents because the 2nd respondent purported to deal with deceased property without letters of administration, and declined to condemn the appellant to pay costs since she may have been defrauded
Costs
No costs awarded: the court set aside the High Court costs order, declining costs to the respondents (the 2nd respondent's dealings with the estate remain obscure) and refusing to condemn the appellant to pay costs; effectively each party to bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A party who has no letters of administration has no legal capacity or authority to transact or deal with the estate of the deceased. In the words of Section 45 of the Act that is tantamount to intermeddling.
We therefore find the learned Judge’s conclusion that the 2 nd respondent could not have validly entered into a sale agreement is anchored in law, this ground of appeal fails as no amount of other evidence such as the alleged receipt of deposit and the appellant taking possession of the suit property would change the position of a null and void transaction.
In the upshot, we find no merit in this appeal, which we hereby order dismissed except on the issue of costs.
Accordingly we set aside the order of costs and order this appeal dismissed.
Issues in the judgment
#The judgment contains an internal inconsistency in the coram/opening: the appeal is stated to be from a judgment 'dated 5th day of October, 2017' yet the judgment is 'Dated and delivered at Mombasa this 20th day of September, 2018', which is consistent; however the opening paragraph describes the 2nd respondent as 'the deceased daughter (2nd respondent)' while elsewhere she is described as the deceased's living heir who signed the sale agreement, and the court states 'the deceased is succeeded by his only heir the 1st respondent' although elsewhere the 2nd respondent is described as 'the only heir to the deceased estate'.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kabui v Lalani (Cause 1697 of 2017) [2023] KEELRC 777 (KLR)[2023] KEELRC 777 (KLR)28 Mar 2023
Cite this brief
#Cite this brief
Caselaw, "Kaburu v Abdirahman & another (Civil Appeal 95 of 2017) [2018] KECA 280 (KLR)", Case Analysis (2018). Civil Appeal No 95 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/280/eng@2018-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.