[2022] KEHC 14070 (KLR)

In re Estate of joseph Owegi (Deceased) (Succession Cause 937 of 2007) [2022] KEHC 14070 (KLR) (17 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14070 (KLR)

Republic of Kenya

In the High Court at Kisumu

Succession Cause 937 of 2007

RE Aburili, J

October 17, 2022

IN THE MATTER OF THE ESTATE OF JOSEPH OWEGI (DECEASED) AND IN THE MATTER OF AN APPLICATION FOR REVOCATION/ANNULMENT OF GRANT HANNIGTON RABUR JUMA............INTERESTED PARTY/APPLICANT VERSUS FLORENCE AWINO AKUN................1ST OBJECTOR/1ST RESPONDENT ERICK OCHIENG AKUN..................2ND OBJECTOR/ 2ND RESPONDENT PHILISTA OCHUKA ODALO...............PETITIONER/3RD RESPONDENT CHARLES RAGAMA OPONDO....................INTERESTED PARTY/4TH RESPONDENT

Between

Hannigton Rabur Juma

Applicant

and

Florence Awino Akun

1st Objector

Erick Ochieng Akun

2nd Objector

and

Philista Ochuka Odalo

Petitioner

and

Charles Ragama Opondo

Interested Party/Respondent

Ruling

1. The applicant herein, Hannington Rabur Juma vide an application dated August 27, 2021 sought the following orders:a.Spentb.Spentc.Spentd.Spente.The order that the suit land known as Title Number Kisumu/Kanyawegi/2556 be reviewed, varied and set aside and in its place an order be issued reinstating the interested party/applicant, Hannington Rabur Juma, as the registered owner.f.The costs of this application be provided.

2. The application is supported by the grounds therein as well as his supporting affidavit.

3. It is the applicant’s case that on the April 29, 2020, the Honourable Court issued orders that the suit land Title Number Kisumu/Kanyawegi/2556 revert back to the name of Joseph Olang Owegi whereas the suit land had already passed to the applicant and no longer formed part of the deceased’s estate.

4. It was the applicant’s case that he purchased the suit land from the 3rd respondent vide a sale agreement dated November 11, 2009 for a consideration of Kshs 210,000 which he paid between November 2008 and November 2010 and further that 3rd respondent sold the land to her in her capacity as the administrator of the deceased’s estate.

5. The applicant further averred that the confirmation of grant was issued to the 3rd respondent on the April 30, 2010 which certificate also confirmed that the 3rd respondent was the sole heir to the deceased’s estate and that he was registered as the owner of the suit land on October 29, 2010.

6. It is the applicant’s case that he stands to suffer grave and irreparable damage and loss if the orders sought are not granted as he has been in quiet possession of the suit land for the past 12 years during which time he has constructed a permanent house on it, planted trees and in sum made substantial improvements to it estimated to be approximately Kshs 7,000,000.

7. It was the applicant’s case that he was an innocent purchaser for value.

8. In response, the 1st and 2nd respondents filed Grounds of Opposition dated November 26, 2021 contending that:a.The application is misconceived and bad in lawb.The application lacks merit and does not liec.The application is fatally and incurably defectived.The application is an abuse of the court processe.The affidavit in support of the application is defectivef.The application has not met the threshold required in law to merit the orders sought.

9. The parties agreed to dispose of the application by way of written submissions.

Applicant’s Submissions 10. The applicant submitted that he was the duly registered owner of the suit land and that his title was protected under Article 40 of theConstitution, section 93 of the Law of Succession Act and section 26 of the Land Registration Act, 2012.

11. It was further submitted that he purchased the suit property above board and after due diligence confirmed that he was dealing with a bona fide administrator holding a confirmed grant and thus the resultant title was indefeasible and protected under section 93 and as provided in the case of Jecinta Wanja Kamau v Rosemary Wanjiru Wanyoike & Another [2013] eKLR as well as the case of Republic v Land Registrar Taita Taveta District & Another [2015] eKLR.

12. The applicant further relied on the case of James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another [2016] eKLR where the court held interalia that the right to be heard before an adverse decision is taken against a person is fundamental and permeates the entire justice system.

1st & 2 nd Respondents’ Submissions 13. It was submitted that purchase of the suit land before confirmation of grant of letters of administration was irregular and illegal which stripped the applicant of any rights and/or interest he may have had in the suit parcel as provided in section 82 of the Law of Succession Act as well as was upheld in the case ofIn re Estate of Jamin Inyanda Kadambi (deceased) [2021] eKLR.

14. The 1st and 2nd respondents further submitted that the applicant having purchased the suit parcel prior to the confirmation of grant intermeddled with the deceased’s estate contrary to the provisions of sections 45 and 82 of the Law of Succession Act as well as the findings in the case of Morris Mwiti Mburungu v Denis Kimathi M’Mburungu [2016] eKLR.

Analysis & Determination 15. I have considered the application, the affidavits sworn in support and in opposition to the motion as well as the parties’ rival written submissions. In my view, two main issues arise for my determination which are as follows:i)Whether the applicant’s supporting affidavit is defective and incompetent for failure of it being dated;ii)Whether the applicant has satisfied the conditions precedent for the grant of an orders of review, variation and setting aside of the orders of this court made on April 29, 2020 that reverted land parcel number Kisumu/Kanyawegi/2556 to the name of Joseph Olang Owegi the deceased.

16. On the first issue, 1st and 2nd respondents pleaded in their Grounds of Opposition dated November 26, 2021 that the applicant’s affidavit in support of their motion seeking the orders of review was defective. However, no submission was made on the alleged defect.

17. I have perused the impugned affidavit sworn by the applicant. I observe that the filed affidavit is sworn before a commissioner for oaths who signed it. The applicant also signed it. However, the affidavit is not dated. the question is whether failure to date the affidavit in support of the application herein is fatal.

18. There are two differing schools of thought on this question. One school of thought is that failure to date the pleading or affidavit is fatal whereas another school of thought holds the position that such failure is curable and does not go to the root or jurisdiction of the matter hence no pleading should be held to be void on account of an undated pleading or affidavit.

19. Before the promulgation of the 2010 Constitution, Courts had the opportunity to deliberate on this question of undated pleadings and affidavits in support. In Erastus K Wameya & 4 others v Jotham Wabomba & another [2008] eKLR, F Ochieng J,(as he then was) had this to say in a matter where the plaint and verifying affidavit were signed but not dated:'Another issue raised before me, is in relation to the failure by the plaintiffs’ to date both the Plaint and the verifying affidavit.Does that omission render the Plaint and verifying affidavit fatally defective, as asserted by the applicant? Or, is the said omission a curable defect, as submitted by the plaintiffs?As far as the plaintiffs are concerned, the failure to date the Plaint and the verifying affidavit constitutes nothing more than a technical defect. The omission is said to be a matter of form, rather than substance.The question that I ask myself is the role of dates in plaints and verifying affidavits.Prior to 1975, if an affidavit had been sworn prior to the filing of a suit, such an affidavit would be rejected. However, since the amendment of Order 18 rule 9 of theCivil Procedure Rules, an affidavit shall not be rejected solely because it was sworn before the filing of the suit concerned.In the circumstances, I hold that the requirement for dating an affidavit is directory.As regards the Plaint, I hold that the dating thereof is equally directory. I say so because by virtue of the provisions of Order 4 rule 2 (2) of the Civil Procedure Rules, the date – stamp affixed to the Plaint, at the court registry, when the plaintiff will have paid the requisite fee, is the date of filing suit. It would matter little that the plaintiff had dated the plaint earlier than the date of filing, if, for instance, the issue arose regarding whether the suit had been brought within or outside the period prescribed by law.In the result, I do accept as correct, the plaintiffs’ submissions, to the effect that the failure to date the plaint and the verifying affidavit did not go to the substance of the said documents. The defects are thus not fatal.In the case of Microsoft Corporation v Mitsumi Computer Garage Ltd & another, Milimani HCCC No 810 of 2001, the Hon Ringera J (as then was) said:'Deviations from or lapses in form and procedure which do not go to jurisdiction of the court or prejudice the adverse party in any fundamental respect ought not to be treated as nullifying the legal instruments thus affected. In those instances the court should rise to its higher calling to do justice by saving the proceedings in issue.That is precisely what I have decided to do herein, as the failure to date either the plaint or the verifying affidavit does not go to jurisdiction, nor does it prejudice the applicant herein.'

20. InDaniel Wepukhulu & another V Attorney general [2007] eKLR, Karanja J as she then was had this to say concerning an application which was supported by an affidavit which was sworn but not dated:'That leaves the 1st application dated September 28, 2000 (sic) I note that the same is supported by an affidavit which is not dated. An affidavit must indicate the date and place it is commissioned.The failure to date an affidavit is fatal and it renders the same incurably defective for contravening the provisions of Cap 15 of the Laws of Kenya. Accordingly the said affidavit is struck out. OXXXVI (36) 3 C (1) of the Civil procedure Code explicitly provides for the mode and procedure of bringing to court an application based on section 27 of the Limitation of Actions Act. The same provides that:'An application under section 27 of the Limitation of Actions Act made before filing a suit shall be made ex-parte by Originating Summons supported by affidavit.'

21. In Nyabuto Arambe Abusa v Kenya Power & Lighting Co Ltd [2015] eKLR, M Mbaru J of the Employment and Labour Relations Court held that failure to date an affidavit in support of the claim as filed by the Claimant was fatal to the proceedings and she proceeded to strike out those pleadings.

22. The learned Judge stated as follows:'18. There is objection with regard to the filing of the claim without a signed Verifying Affidavit. The Rules of the Court must be read together with the substantive law especially for this Court the Industrial Court Act and where a particular matter is not adequately addressed by the Rules of the operative Act, any other written law applicable in Kenya and that relate to the regulation of the matter at hand can be relied upon. In this case the challenge is with regard to the filing of a Verifying Affidavit that is not signed. Under the Rules of the Court, claims must be accompanied by a Verifying Affidavit, verifying the facts upon which the claim is based on. Affidavits are governed by written law that is the Oaths and Statutory Declarations Act, Cap 15 Laws of Kenya. The affidavit required under Rule 4 on the Industrial Court Rules must accompany the memorandum of Claim filed before this Court as verification that indeed the person subject to the suit/claim has given authority to the filing of the suit and this affidavit must comply with written law that is the Oaths and Statutory Declarations Act. Such an affidavit must be signed by the deponent, dated and note the place where the deponent is situated stated. These are not just mere technicalities that can be omitted and left to be addressed literally. There is a law the governs the making of affidavit, the Oaths and Statutory Declarations Act, such a law is intended to ensure that the facts deponed in an affidavit are true and based on the personal knowledge of the maker and hence the requirement to state where the affidavit was made, the date and the name of the deponent. By singing such a statement, the deponent is in essence giving evidence under oath that the contents of such a documents is correct to the best of his knowledge at the time such an affidavit was made as held in Kenya Union of Employees of Charitable Organisations versus St Joseph Catholic Church Parish, Cause No 745 of 2013. Hence the failure to note the dates when such an affidavit is made becomes crucial to the facts stated as such facts may or could change based on the time the particular averments in the affidavit are made. To thus fail to state the time when the affidavit was made removes a very vital aspect of the same from the document, making it valueless and cannot be relied upon. The claim that has such an affidavit that is undated is thus left exposed and without any Verifying Affidavit.'

23. Thus, it was the norm prior to 2010 that the discretion of courts was always exercised sparingly as technicalities carried the day at the expense of substantive justice. However, there were exceptions where some Judges examined the circumstances of each case and decided the question based on the facts of each case, holding that as long as the defect did not go to the root or jurisdiction of the case or prejudice the adverse party, the court should not strike out an affidavit or pleading that is signed or commissioned but not dated. This is so especially with the enactment of Article 159(2) (d) of theConstitution which mandates this court in exercise of judicial authority, not to pay regard to procedural technicalities at the expense of substantive justice. I must however warn that the Article was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from the courts.

24. The procedure for filing of motions is provided in Order 51 of the Civil Procedure Rules 2010 as follows:'Procedure [Order 51, rule 1. ]All applications to the court shall be by motion and shall be heard in open court unless the court directs the hearing to be conducted in chambers or unless the rules expressly provide.Contents of notice [Order 51, rule 4. ]Every notice of motion shall state in general terms the grounds of the application, and where any motion is grounded on evidence by affidavit, a copy of any affidavit intended to be used shall be served.'

25. Thus, Rule 4 provides for an affidavit accompanying the notice of motion.

26. Section 5 of the Oaths and Statutory Declarations Act Cap 15 Laws of Kenya provides for particulars to be stated in the Jurat as hereunder:'Every commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.'

27. I note the guidance provided by the provisions of Order 19 Rule 6 of the Civil Procedure Rules, 2010 which provide for instances when the court may strike out an affidavit. It stipulates that an affidavit cannot be struck out merely on technicalities as set out in Order 19 Rule 7 of the Civil Procedure Rules, 2010. The said provision states as follows-'The court may receive any affidavit sworn for the purpose of being used in any suit notwithstanding any defect of mis description of the parties or otherwise in the title or other irregularity in the form thereof or on any technicality.'

28. In view of the above provisions, this court invokes the provisions of Article 159 (2) (d) of theConstitution and applies its discretion by disregarding this omission of the date on the supporting affidavit and finds that the date of the affidavit shall be the date when the application was filed in court. Accordingly, I find that the objection on the affidavit which was not dated is not valid. I reject it. I will therefore determine the application on its merits.

29. On the second issue as to whether the applicant meets the conditions precedent for grant of orders of review, varying and setting aside of its previous orders and thus reinstate the applicant as the registered owner of the suit properties, review of orders in succession cases are governed by Rule 63 of the Probate and Administration Rules which provides that:'63. Application of Civil Procedure Rules and High Court (Practice and Procedure) Rules-(1)Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Orders V, X, XI, XV, XVIII, XXV, XLIV and XLIX (Cap. 21, Sub Leg), together with the High Court (Practice and Procedure) Rules (Cap 8, Sub Leg), shall apply so far as relevant to proceedings under these Rules.(2)Subject to the provisions of the Act and of these Rules and of any amendments thereto the practice and procedure in all matters arising thereunder in relation to intestate and testamentary succession and the administration of estates of deceased persons shall be those existing and in force immediately prior to the coming into operation of these Rules.”

30. In John Mundia Njoroge & 9 Others v Cecilia Muthoni Njoroge & Another [2016] eKLR, the court cited the above Rule 63 of the Probate and Administration Rules and stated inter alia that any party seeking review of orders in a probate and succession matter is bound by the provisions of Order 45 of the Civil Procedure Rules.

31. Order 45 of the Civil Procedure Rules stipulates that:'1. (1)Any person considering himself aggrieved—(a)By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)By a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.

(2) 32. The above cited Order 45 of the Civil Procedure Rules provides for three circumstances under which an order for review can be made. To be successful in their application for review, the applicant must demonstrate to the satisfaction of the court that there has been discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree or order was passed. Secondly, a party may successfully apply for review if he can demonstrate to the satisfaction of the court that there has been some mistake or error apparent on the face of the record. The third ground for review is worded broadly: an application for review can be made for any other sufficient reason.

33. The applicant herein in his grounds in support of the application or review states that he was the owner of the suit property prior to the succession court orders canceling his registration, having acquired the said title from the estate’s bona fide administrator and thus the resultant title was indefeasible and protected under section 93 of the Land Registration Act.

34. The applicant further submitted that the orders that he seeks to be reviewed were granted without him being given an opportunity to address court.

35. It is true that from the court record, the applicant herein was not a party to the probate proceedings leading to the orders that he seeks to be reviewed. To that extent, the applicant cannot claim to be in possession of new and important matter or evidence which was not within his knowledge or could not be produced by him at the time when the decree or impugned order was passed.

36. The other ground for review under Order 45 of the Civil Procedure Rules is error apparent on the face of the record. In Muyodi v Industrial and Commercial Development Corporation & Another (2006) 1 EA 243 the Court of Appeal considered what constitutes a mistake or error apparent on the face of the record and stated that:'In Nyamogo & Nyamogo vs Kogo (2001) EA 174 this Court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error or wrong view is certainly no ground for a review although it may be for an appeal.'The Court accorded no particular definition for an error apparent on the face of the record, stating that it would vary with each particular case. But in an earlier Tanzanian decision in the case of Chandrakhant Joshibhai Patel V R (2004) TLR, 218, it was held that an error stated to be apparent on the face of the record:‘Must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a long drawn process of reading on points on which may be conceivably be two opinions'.

37. In the application before this court, no error or mistake apparent on the face of the record has been pointed out by the applicant to warrant an order for review.

38. The question therefore is whether there is any other sufficient cause or reason that would allow the court to exercise powers of review under Order 45 of the Civil Procedure Rules. The only two reasons advanced for the application for review is that the applicant was not heard before the impugned order was made and that he stands to suffer grave and irreparable damage and loss if the orders sought are not granted

39. Examining the material placed before this court by the applicant herein, it is his case that he purchased the suit land from the 3rd respondent vide a sale agreement dated November 11, 2009 for a consideration of Kshs 210,000 which he paid between November 2008 and November 2010. The applicant further stated that the confirmation of grant was issued to the 3rd respondent on the April 30, 2010.

40. In the case of Francis Musyoki Kilonzo and another v Vincent Mutua Mutiso (2013) eKLR Mutende J persuasively held that where a beneficiary purport to sell a property of a deceased person before the grant is confirmed and in contravention of section 45 of the Law of Succession Act, it amounts to intermeddling and the court cannot protect the purchaser.

41. Section 45 of the Law of Succession Act provides that:'45 (1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a decease person.(2)Any person who contravenes the provisions of this Section shall-(a)Be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and(b)Be answerable to the rightful executor or administrator to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.'

42. From the applicant’s own case, it is clear that his purported purchase of the suit land was prior to the confirmation of the grant issued to the administrator. However, the above cited provision of the law is quite clear that no one is entitled to intermeddle with any free property of a deceased person. There are sanctions that follow any such intermeddling. Intermeddling includes taking possession, disposing or even trespassing on the property of a deceased person.

43. In this regard, any act done in contravention of section 45 of the Law of Succession Act is unlawful and cannot stand. In the case of Muriuki Musa Hassan V Rose Kanyua and 4 Others (2014) eKLR, the Court was faced with a situation of sale of a property before succession. Makau J stated thus and I agree:'The interested parties are not direct creditors of the deceased before his death but purchasers from one of the deceased beneficiaries and the sale of the land to them is challenged in this application. In such circumstances the interested parties interest cannot be considered in this matter and the remedy for them if they would be aggrieved by final court’s decision and distribution, is to file suit against the said Muriuki Musa Hassan. That in any event, Muriuki Musa Hassan is entitled to share of the deceased estate and he will definitely be interested in the interested parties interest so as to legitimize the sale of the land to the interested parties.'

44. In re Estate of Yohana Anyika – Deceased [2019] eKLR, Musyoka J stated as follows regarding purchasers of an estate from administrators in a matter where no certificate of confirmation had been issued:'8. It is now established law that a beneficiary who sells part of the estate of the deceased before confirmation of the grant is intermeddling with the estate of the deceased, contrary to section 45 of the Law of Succession Act, Cap 160, Laws of Kenya. In the case of Gitau and Two Others vs. Wandai and Five Others (1989) KLR 231 it was held that entering into an agreement to sell estate property before getting a grant or without such a grant is an act of intermeddling with the estate. In Re Estate of M’Ngarithi M’Miriti [2017] eKLR the court was of the view that –‘Courts have said time and again that any person who without the authority of the Law of Succession Act or any other written law or grant of representation, takes possession or disposes of, or otherwise intermeddle with the free property of the deceased is guilty of a criminal offence and is answerable to the rightful executor or administrator of the extent of the assets he has intermeddled with. The 1st and 2nd administrator have alleged that the 3rd administrator without the authority of the law or grant of administration or court sold part of the estate property to a third party one David Gikunda. The 3rd administrator did not respond to those allegations. That notwithstanding, this grant is yet to be confirmed and as such the restriction on distribution of estate’s capital or immovable properties under section 55 and 82(b) (ii) of the Law of Succession Act applies. Accordingly, there is nobody yet with authority to sell the estate property herein to any person including David Gikinda. Accordingly, the sale to or acquisition of the immovable property of the estate by David Gikunda is completely in violation of the law, and therefore null and void. Whatever, the 3rd administrator may have attempted to sell is part of the estate to which these proceedings relate and I shall proceed as such. If he is in occupation, he shall be evicted forthwith.'9. Further the court in Re Estate of John Gakunga Njoroge (Deceased) [2015] eKLR stated that -‘For the transactions between the applicants and the beneficiaries of the estate of the deceased entered into before the Grant of Letters of Administration to them and before the Confirmed Grant, the contracts of sale are invalid for offending the provisions of section 45 and 82 of the Law of Succession Act. Even if the sale transactions were by the administrators, the dealings with immovable property of the estate is restricted by the provisions on the powers and duties of the personal representatives under section 82 (b) Proviso (ii), which provides that: -'(ii)No immovable property shall be sold before confirmation of the grant.'10. The court in In the Matter of the Estate of Isaac Kaburu Marete (Deceased) Daniel Gituma Marete vs Frankline Mutwiri [2017] eKLR stated as follows: -‘Acquisition of land before confirmation of grant is unlawful and does not enjoy property rights under theConstitution. Upon meticulous consideration of the protest, all arguments filed and the law, I am of the following persuasion. I will restate once again what I stated in the case of Re the Matter of the Estate of M’Ajogi M’Ikiugu alias Ikiugu Ajogi (Deceased) on sale of estate property before confirmation of grant as follows: -'Sale of estate property before confirmation, courts have said time and again- and I will not be tired of stating it again- that, under section 82(b) (ii) of the Law of Succession Act, sale of immovable property of the estate before confirmation of grant is prohibited. Again, under section 55 of the Law of Succession Act, the law has placed restriction on distribution of any capital assets of the estate before confirmation of grant. Therefore, no person shall have any power or legal authority or capacity to sell immovable property of the deceased before confirmation of grant. As such, any such attempted sale of immovable property of the estate before confirmation of grant shall be null and void for all purposes and intents. I need not also state that beneficial interest of a person beneficially entitled to a share in the estate must be identified and be capable of registration in his name before it could be sold or pledged as security or exchanged with another type of property. It is during confirmation hearing that the court establishes the respective identities and shares of persons beneficially entitled, and when confirmed the grant specifies such persons and their respective shares in the estate. See section 71 of the Law of Succession Act. Therefore, before confirmation, the interest of the beneficiary remains amorphous and entangled within the estate; and vested in the administrator or executor as the estate property as by law stated.'But for completeness of the foregoing discourse, I wish to go two steps up. First, a void transaction is in law a nullity. It is not only bad, but incurably bad. And every proceeding or perceived right which is founded on it is not only bad but incurably bad. On this I can do no better than Lord Denning MR in the case of Macfoy vs United Africa Co Ltd [1961] 3 All ER 1169 at pg 1172 that:'If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.'11. From the forgoing it is clear that the sale agreement between the petitioner and the said alleged purchaser was null ab initio by virtue of the provisions of the law and amounted to intermeddling on the part of the petitioner. as such the purchaser is not entitled to any portion from the estate of the deceased. The contract of sale between the petitioner and the said Erick Kingali was null and therefore he cannot benefit from the estate of the deceased.'

45. Furtherin re Estate of Agwang Wasiro (Deceased) [2020] eKLR the learned Judge had this to say and I wholly agree:'However, there are limitations. In the first place, the grant-holder is not an absolute owner of the property in question. The property does not belong to him, but to the estate, and he holds it as a personal representative of the deceased. He holds the property for the purpose of administration and management only, with the ultimate objective of the same being distributed to the persons beneficially entitled to it under the law of inheritance, depending on whether the deceased person died testate or intestate. His powers over the property are, therefore, limited. There are certain things that an owner of such property can do that a grant-holder cannot. He cannot sell it at will, for example. Section 82(b) (ii) of the Law of Succession Act, is specific that, whereas the grant-holder does have a power to sell estate property, immovable property can only be sold after confirmation of grant. The said provision says:'82. Powers of personal representativesPersonal representatives shall, subject only to any limitation imposed by their grant, have the following powers—(a)(b)To sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best:Provided that—(i)(ii)no immovable property shall be sold before confirmation of the grant.'

46. In the instant case, as earlier stated, the applicant purchased land from the administrator before the grant issued to the administrator was confirmed. Section 82 (b) (11of the Law of Succession Act is clear that: 'No immovable property shall be sold before confirmation of Grant.'

47. Thus, as at that time, the administrator had no legal authority or power to dispose of the estate of the deceased person. It follows that the applicant cannot be said to be the creditor of the said estate. He assisted the administrator to intermeddle with the estate of the deceased. He can only engage the administrator in the latter’s personal capacity for redress and not hold the estate of the deceased to account.

48. Gikonyo J put it in better words when he stated as follows in a precise ruling that determined a similar issue before him in the case of M'Ikiugu (Deceased) [2017] eKLR:'Sale of estate property before confirmation(4)Courts have said time and again- and I will not be tired of stating it again- that, under section 82(b) (ii) of the Law of Succession Act, sale of immovable property of the estate before confirmation of grant is prohibited. Again, under section 55 of the Law of Succession Act, the law has placed restriction on distribution of any capital assets of the estate before confirmation of grant. Therefore, no person shall have any power or legal authority or capacity to sell immovable property of the deceased before confirmation of grant. As such, any such attempted sale of immovable property of the estate before confirmation of grant shall be null and void for all purposes and intents. I need not also state that beneficial interest of a person beneficially entitled to a share in the estate must be identified and be capable of registration in his name before it could be sold or pledged as security or exchanged with another type of property. It is during confirmation hearing that the court establishes the respective identities and shares of persons beneficially entitled, and when confirmed the grant specifies such persons and their respective shares in the estate. See section 71 of the Law of Succession Act. Therefore, before confirmation, the interest of the beneficiary remains amorphous and entangled within the estate; and vested in the administrator or executor as the estate property as by law stated.Applying the test(5)Now, applying this test, the agreement herein was entered into on February 22, 2012 by the Petitioners and the interested party. The property subject of sale is ½ acre to be excised from Nyaki/nkabune/119. This is the estate property. The said agreement suggested that transfer will be made after conclusion of intended succession cause. Clearly, the sale was done by the two petitioners even before they had applied for letters of administration. That is purely an act of intermeddling with the estate of the deceased and is a criminal offence under section 45 of the Law of Succession Act which provides as follows:Protection45. No intermeddling with property of deceased person(1)Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.(2)Any person who contravenes the provisions of this section shall—(a)Be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and(b)Be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.Accordingly, the sale agreement is vitiated having been procured by persons without legal capacity or lawful authority to sell the estate property. As such, the sale was in total breach of law and is, therefore, null and void for all purposes and intents. I so declare it. The upshot of my finding is that the application dated September 2, 2014 is dismissed. I will not condemn the Applicant to pay costs because the actions by the two petitioners in selling the estate property before confirmation of grant is most foul. I, therefore, order that each party shall bear own costs of the application.'

49. Taking all the above into consideration and as the law on intermeddling with the estate of the deceased is now well settled, I find that the applicant has failed to provide grounds or sufficient cause to justify grant of the orders sought in the application, dated August 27, 2021, and the same is hereby dismissed with no orders as to costs. This file is closed to allow the distribution of the estate of the deceased to take place as required by law.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 17TH DAY OF OCTOBER, 2022R.E. ABURILIJUDGE