Nyaga v Karimi & another (Civil Appeal 228 of 2018) [2025] KECA 1705 (KLR)
The bottom line
#Land sold by an estate administrator before a grant is confirmed in Kenya is invalid, but buyers protected by a confirmed grant keep their purchase.
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 respondents purchased the suit properties when the administrator at the time had authority to sell the same to them
- 2.Whether the beneficiaries of the estate of the deceased were entitled to inherit the suit properties as a whole or part of the suit properties
- 3.What orders are to issue in respect of this appeal together with the attendant costs
Key legal issues
#Whether the respondents acquired valid interests in the deceased's parcels of land through purchases from the widow/administrators before confirmation of the grant
The sales made before confirmation of any grant were illegal, criminal under section 45 of the Law of Succession Act, amounted to intermeddling and could not form the basis of the respondents' claim; the respondents were not creditors of the estate.
The court re-evaluated the evidence and found that all but one of the sale agreements were executed while the widow's grant remained unconfirmed. Section 82(b)(ii) forbids a personal representative from selling immovable property before confirmation. Such transactions, being unlawful and intermeddling under section 45, confer no enforceable interest in the estate.
Whether the sale of a quarter acre of Gaturi/Weru/3508 on 17th October 2007, executed during the subsistence of a confirmed grant, was valid despite the later revocation of that grant
That sale was valid; the 1st respondent benefits from sections 82(b)(ii) and 93 of the Law of Succession Act and holds a valid and legal interest and title to that portion.
Section 93(1) validates transfers of interests in immovable property made by a person to whom representation has been granted, notwithstanding any subsequent revocation or variation of the grant. Since the 17th October 2007 agreement was made by an administrator while a confirmed grant subsisted, the purchaser's title survives the later revocation.
Who is entitled to the remainder of the estate
The proper and legal beneficiaries are entitled to the remainder of the estate, and the titles issued to the respondents over all parcels except the quarter acre of Gaturi/Weru/3508 are liable to and stand revoked.
Having found the pre-confirmation sales void, the third parties could not keep the parcels to the exclusion of the lawful beneficiaries. The court directed the appellant to file a fresh schedule of distribution accommodating the one valid purchase, and revoked all titles issued to the respondents after the deceased's death.
The duty of a first appellate court
A first appeal is by way of retrial; the appellate court must reconsider and evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses.
Relying on Selle and Another v Associated Motor Boat Co Ltd, the court reaffirmed that it is not bound by the trial judge's findings of fact where the trial court failed to take account of particular circumstances or probabilities or materially misestimated the evidence.
Legal principles established
#- A personal representative of a deceased's estate cannot sell any immovable property of the estate before the grant has been confirmed; such pre-confirmation sales are illegal, amount to intermeddling and cannot found a claim to the estate.
- A transfer of immovable property by a personal representative to a purchaser made while a confirmed grant subsists remains valid notwithstanding any subsequent revocation or variation of the grant, and is not invalidated by the purchaser's notice that debts and liabilities have not been discharged.
Court orders
#- 1.The judgment delivered by the High Court at Embu (Muchemi J) on 19th June 2018 in Succession Cause No. 77 of 2002 as consolidated with Succession Cause No. 284 of 2007 is set aside in its entirety
- 2.The appellant shall file and serve all proper and legal beneficiaries with a new affidavit and schedule of distribution of the estate of the deceased within 45 days of the date of the judgment, taking into account the findings made herein and particularly the 1st respondent's interest in and title to a quarter (¼) of an acre of Land Parcel Number Gaturi/Weru/3508 sold on 17th October 2007
- 3.Any and all titles to the remaining parcels of land forming part of the estate of the deceased which were issued to the 1st and 2nd respondents after the death of the deceased are revoked
- 4.Each party shall bear their own costs of the appeal and of the suit in the High Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Embu
- Succession Cause No. 77 of 2002 as consolidated with Succession Cause No. 284 of 2007
- Jurisdiction invoked
- First appeal to the Court of Appeal against the judgment of the High Court in a succession cause
- Consolidated with
- Succession Cause No. 284 of 2007
Relief refused
#Full validation of the 1st respondent's purchases of the deceased's parcels of land
All but one sale agreement were entered into before confirmation of the grant and were illegal, amounting to intermeddling; only the sale of a quarter acre of Gaturi/Weru/3508 on 17th October 2007, made during a confirmed grant, was protected
Costs
Each party shall bear their own costs of the appeal and of the suit in the High Court
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.
Under section 82(b)(ii) of the Law of Succession Act, the personal representative of the estate of the deceased cannot sell any immovable property of the estate before the grant has been confirmed.
These transactions were not only illegal but were also criminal under section 45 of the Act. They amounted to intermeddling, and could not form the basis of the respondent’s claim to the estate of the deceased.
the 1st respondent can in the circumstances benefit from the protections afforded by both section 82(b)(ii) and section 93 of the Law of Succession Act, and has a valid and legal interest and title
the proper and legal beneficiaries of the estate of the deceased are entitled to the remainder of the estate of the deceased, and the titles issued to the respondents for all parcels of land belonging to the deceased except for a quarter (¼) of an acre of Land Parcel Number. Gaturi/Weru/3508 sold on 17th October 2007 to the 1st respondent are accordingly liable for revocation.
Any and all titles to the remaining parcels of land forming part of the estate of the deceased which were issued to the 1st and 2nd respondents after the death of the deceased are hereby revoked.
Given the circumstances giving rise to the appeal, each party shall bear their own costs of the appeal and of the suit in the High Court.
Issues in the judgment
#The judgment inconsistently records the 2nd respondent's name and the sale date context: he is called both 'Nicasio Njeru Nyaga' and 'Nicasio Njeru Njagi', and paragraph 19 refers to beneficiaries 'Gicuku Njagi' where the record elsewhere names the appellant as 'Mary Gicuku Nyaga'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyaga v Karimi & another (Civil Appeal 228 of 2018) [2025] KECA 1705 (KLR)", Case Analysis (2025). Civil Appeal (Succession) – Succession Cause No. 77 of 2002 as consolidated with Succession Cause No. 284 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1705/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.