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ELCPartially AllowedAppeal from Kandara ELC Case No. 40 of 2019

Kamau v Kiarie & another (Legal Representative of the Estate of Naomi Wambui Kiarie - Deceased) (Environment and Land Appeal E003 of 2022) [2024] KEELC 222 (KLR)

High Court of Kenya (Environment and Land Division, Murang'a)
25 January 2024
LGL. GACHERU
10,018 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~40 min to read original · ~4 min brief

The bottom line

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Kenya's High Court confirmed you cannot sell a deceased person's land before a grant is confirmed, and such deals cannot be enforced by courts.

What this practically means

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Executive summary

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This is a first appeal to the High Court at Murang'a (L. Gacheru, J) against the judgment of Hon. E. Mutunga, PM in Kandara ELC Case No. 40 of 2019, delivered on 3rd March 2022, which had found that the Respondent, Francis Mwangi Kamau, was entitled to 2.05 acres out of land parcel Loc.4/Gatitu/227 pursuant to a Memorandum of Understanding and sale agreements with Naomi Wambui Kiarie (deceased), the mother of the Appellants. The Appellants, administrators of Naomi's estate, contended that at the time of the 2006 and 2007 transactions Naomi had no confirmed grant over her late husband Kiarie Kamau's estate and therefore lacked capacity to sell; that the MOU was invalid, describing neither the land nor a definitive price; and that the trial court erred in treating the Respondent's uncontroverted evidence as proof and in awarding an unexplained 2.05 acres. The court, re-evaluating the evidence as a first appellate court, framed four issues and held: (i) the sale of estate property before confirmation of grant contravened sections 82(b)(ii), 55 and 45 of the Law of Succession Act and amounted to intermeddling, with Article 40(6) denying constitutional protection to unlawfully acquired property; (ii) the MOU failed section 3(3) of the Law of Contract Act and section 38(1) of the Land Act and was not a valid sale agreement; (iii) the burden of proof remained on the plaintiff notwithstanding the defendants' silence; and (iv) no basis existed for awarding 2.05 acres. The court suggested the Respondent might be a creditor rather than a purchaser. Allowing the appeal, the court set aside the trial judgment, dismissed the Respondent's claim dated 11th October 2019, and awarded the Appellants costs in the trial court and on appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned trial Magistrate erred in law and fact by finding that the deceased, Naomi Wambui Kiarie, had legal authority or capacity to sell Loc.4/Gatitu/227, belonging to her late husband Kiarie Kamau
  2. 2.Whether the learned trial Magistrate erred in law and fact by finding that the MOU between the Respondent and the Deceased was a valid document
  3. 3.Whether the learned trial Magistrate erred in law and fact by finding that because the Appellants did not call any witnesses, they failed to defend themselves
  4. 4.Whether the learned trial Magistrate erred in law and fact by finding that the Respondent is entitled to a portion of land measuring 2.05 acres out of land parcel Loc.4/Gatitu/227

Key legal issues

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01

Capacity to sell estate property before confirmation of grant

Holding

Naomi Wambui Kiarie had no legal authority or capacity to sell Loc.4/Gatitu/227 before the grant over her late husband's estate was confirmed; the transaction was intermeddling under section 45 of the Law of Succession Act

Reasoning

The suit land originally belonged to Kiarie Kamau. The MOU of 21st December 2007 and the agreement of 19th November 2006 were entered before the grant was confirmed. Section 82(b)(2) prohibits sale of immovable property before confirmation, section 55 restricts distribution of capital assets, and section 45 criminalises intermeddling. A sale in breach is a nullity and, under Article 40(6), such unlawfully acquired property enjoys no constitutional protection.

p. 14
02

Validity of the MOU as a contract for sale of land

Holding

The MOU was not a valid sale agreement: it did not describe the parcel of land, specify purchase price for identified land, conditions or completion date, contrary to section 3(3) of the Law of Contract Act and section 38(1) of the Land Act

Reasoning

The MOU referred only to an advance of Ksh.30,000/- in anticipation of a succession cause, without identifying the portion or acreage, while the plaint claimed Ksh.143,750/-/-. Applying section 3(3) of the Law of Contract Act and section 38(1) of the Land Act, and the criteria in Nelson Kivuvani v Yuda Komora, the court held the MOU failed the statutory formalities and could not found a claim to a specific 2.05 acres.

p. 15
03

Effect of defendants not calling witnesses

Holding

Although the Appellants did not give evidence, the trial court erred by treating the plaintiff's unchallenged evidence as truth without interrogating whether the claim was proved on a balance of probabilities

Reasoning

Sections 107 and 108 of the Evidence Act place the legal burden on the plaintiff. A defence that is a mere denial does not lessen that burden; uncontroverted evidence must still be interrogated and must bring out the plaintiff's entitlement. The trial court failed to evaluate whether the plaintiff's evidence discharged the burden, hence erred.

p. 17

Legal principles established

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  • No immovable property of a deceased's estate may be sold before confirmation of grant; any such sale is null and void and does not enjoy constitutional property rights
  • The burden of proof remains on the plaintiff throughout; uncontroverted evidence must still be interrogated and must prove the case on a balance of probabilities
  • A valid contract for the disposition of an interest in land must be in writing, signed by all parties, attested by a witness, and identify the property, price and conditions

Court orders

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  1. 1.Judgment of the trial court (Hon. E. Mutunga, PM) delivered on 3rd March 2022 set aside
  2. 2.Respondent's (Plaintiff's) claim before the trial court dated 11th October 2019 dismissed with costs
  3. 3.Appeal allowed as prayed in the Memorandum of Appeal dated 29th March 2022
  4. 4.Appellants awarded costs of the suit before the trial court and on this Appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

LG
majority

Wrote the judgment

On appeal from
Kandara Law Courts (Principal Magistrate's Court, ELC)
Kandara ELC Case No. 40 of 2019
Jurisdiction invoked
First appellate jurisdiction under sections 65 and 78 of the Civil Procedure Act (appeal from subordinate court)

Relief refused

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Respondent's claim to be entitled to a portion of land measuring 2.05 acres out of Loc.4/Gatitu/227

Naomi Wambui Kiarie had no capacity to sell estate property before confirmation of grant; the MOU was invalid, did not describe the suit property, and the Respondent failed to discharge the burden of proof

p. 18

Costs

The Appellants are entitled to costs of the suit before the trial Court and on this Appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Consequently, this Court proceeds to interfere with the trial Court's decision of 3rd March 2022, by setting aside the said judgement and thus dismissing the Respondent's (Plaintifi's claim before the trial court) dated 11th October 2019, with costs and allows the instant Appeal as prayed in the Memorandum of Appeal dated 29th March 2022.
p. 18Final orders - appeal allowed, trial judgment set aside, respondent's claim dismissed
The Applicants are entitled to costs of the suit before the trial Court and on this Appeal.
p. 18Costs
The law is very clear that "no immovable property of an estate can be sold before the confirmation of grant."
p. 12Prohibition on sale of estate property before confirmation of grant
Indeed, this MOU cannot be said to be a valid sale agreement for disposition of land.
p. 15Invalidity of the MOU under section 3(3) of the Law of Contract Act
A plaintifi must prove its case too upon a balance of probability whether the evidence in unchallenged or not.
p. 17Burden of proof despite uncontroverted evidence

Issues in the judgment

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minor

The judgment inconsistently dates the trial court's judgment, describing the appeal as against a judgment 'delivered on 3rd March 2022' but later referring to 'the findings and Judgement of the trial court dated 3rd March 2023'

minor

The judgment is materially corrupted in places, with garbled passages and mixed-up case attributions in the citation block

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kamau v Kiarie & another (Legal Representative of the Estate of Naomi Wambui Kiarie - Deceased) (Environment and Land Appeal E003 of 2022) [2024] KEELC 222 (KLR)", Case Analysis (2024). Appeal from Kandara ELC Case No. 40 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/222/eng@2024-01-25

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