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Court of AppealDismissedCivil Appeal No. 14 of 2017· [2018] KECA 771 (KLR)

Nirmal Singh Dhanjal v Joginder Singh Dhanjal & 4 others

Court of Appeal
15 February 2018
5,405 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that any deal distributing a deceased person's property before a grant is confirmed is completely void — no exceptions.

What this practically means

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Executive summary

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This appeal arose from a ruling by Thande J. of the High Court at Mombasa in a succession cause concerning the estate of Jaswant Singh Boor Singh Dhanjal, who died intestate in 2004. Before letters of administration were issued or confirmed, the administrator, Daljit Singh Dhanjal, executed a settlement agreement dated 9th March 2006 under which land and shares in family companies were transferred. Joginder Singh Dhanjal, a brother and beneficiary, applied for declarations that the transfers were null and void, rectification of the companies' registers of members, and accounts. The High Court declared the settlement agreement void, voided the transfer of 18,750 shares in Dhanjal Investments Limited, ordered rectification of its register of members, and directed the administrator to render accounts. Nirmal Singh Dhanjal, a party to the settlement agreement though not a party to the succession cause, appealed. The Court of Appeal framed two issues: the 1st respondent's locus standi, and whether the court erred in voiding the settlement agreement and ordering rectification. The court held that an interested beneficiary may invoke section 76 of the Law of Succession Act and rule 44 of the Probate and Administration Rules without a full or limited grant, distinguishing the authorities cited by the appellant. On the merits, dispositions made before confirmation of grant offended section 55 and were void, and because the share transfers' consideration was the void settlement agreement, they too fell. The court affirmed the ruling below, dismissed the appeal, and ordered each party to bear their own costs, while urging due diligence before large commercial transactions involving estates.

Key legal issues

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01

Whether the 1st respondent, a beneficiary without a grant of letters of administration, had locus standi to bring the application

Holding

Yes. An interested beneficiary may file a summons for revocation of grant under section 76 and rule 44, and was not bound to take out a limited grant under section 54.

Reasoning

Section 76 permits revocation of a grant on the application of any interested party, and rule 44 allows any person interested in the estate to seek such relief. The 1st respondent instituted the application as an aggrieved dependant within the estate matter. Section 54 empowers the court to limit grants but does not oblige a beneficiary protecting his own interest to obtain a limited grant first. The authorities cited by the appellant were distinguishable because they concerned persons purporting to act as administrators, which was not this case.

p. 5
02

Whether the High Court erred in voiding the settlement agreement dated 9th March 2006

Holding

No. The agreement executed dispositions of the deceased's assets before the grant was confirmed, contrary to section 55 of the Law of Succession Act.

Reasoning

It was undisputed that the settlement agreement was executed by the 2nd respondent on 9th March 2006, before letters of administration issued on 26th July 2006 and before confirmation on 20th April 2007. Section 55 forbids distribution of capital assets before confirmation of the grant. Disposition by an unauthorised person prior to confirmation is void, consistent with Musa Nyaribari Gekone v Peter Miyienda. The learned Judge's inherent discretionary finding could not be faulted.

p. 6
03

Whether the share transfers effected in 2008, after confirmation, were valid

Holding

No. The consideration for the transfers was the void settlement agreement, so the transfers could not stand.

Reasoning

Although the 2008 transfers of shares to Dalip occurred after confirmation of the grant, clause 2.1 of the share transfer form recorded the consideration as 'certain agreements made in a settlement agreement'. Since the settlement agreement was declared void, the consideration failed and the transactions founded on it were equally void. The appellant's reliance on section 77 of the Companies Act and Table A did not avail because the underlying consideration was vitiated.

p. 6
04

Whether the transferees were innocent purchasers deserving protection

Holding

No. The transferees were kin and co-directors who knew or ought to have known that letters of administration had not been confirmed.

Reasoning

The beneficiaries of the unlawful transfers were family members and co-directors in the family companies, positioned to know the deceased had died and that his estate had not been distributed under a confirmed grant. The public policy argument regarding the impact on Dalip's estate was never advanced at trial, and no claim was ever made regarding the shares allegedly surrendered by the brothers, so the court could not be faulted for making no finding on them.

p. 6

Legal principles established

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  • No distribution of capital assets of a deceased's estate may be made before the grant of letters of administration is confirmed; distribution done prior to confirmation is void.
  • A beneficiary interested in a deceased's estate has locus standi to apply for revocation or annulment of a grant under section 76 and rule 44 without obtaining a full or limited grant.
  • Where the foundational settlement agreement is void, all transactions springing from it, including share transfers founded on it as consideration, are equally void.
  • An appellate court will not interfere with a judge's exercise of discretion unless the judge misdirected himself or was clearly wrong resulting in injustice.

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.Each party to bear their own costs of the appeal
On appeal from
High Court of Kenya at Mombasa
Probate and Administration Cause No. 20 of 2006
Jurisdiction invoked
First appellate jurisdiction over the High Court under the Court of Appeal's statutory appellate jurisdiction (appeal against a ruling in a succession cause); no specific constitutional provision invoked in the judgment.

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, "Nirmal Singh Dhanjal v Joginder Singh Dhanjal & 4 others", Case Analysis (2018). Civil Appeal No. 14 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/771/eng@2018-02-15

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