[2001] KEHC 56 (KLR)
The court held that the purported sale of the suit property before the grant of Letters of Administration was illegal and contravened Section 45 of the Law of Succession Act. The plaintiff and his co-administrators had no capacity to sell the property, rendering the sale null and void ab initio. Consequently, the...
Source-derived case information.
- Citation
- [2001] KEHC 56 (KLR)
- Parties
- Plaintiff: James Thogo Mwai; Defendant: George Kario
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1302 of 1998
- Procedural Posture
- Civil Case / Ruling on Application for Eviction and Rent Payment
- Outcome
- Application allowed. The sale was declared null and void. Eviction order granted. Costs awarded to the applicant.
- Judges
- JK Mulwa
- Legal Topics
- Eviction Orders, Letters of Administration, Succession Property, Illegal Disposal of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Thogo Mwai
Plaintiff
George Kario
Defendant
Procedural Posture
Civil Case / Ruling on Application for Eviction and Rent Payment
Legal Issues
- 1 Whether the sale of the suit property before the grant of Letters of Administration was illegal and void.
- 2 Whether the Defendant should be evicted from the suit property and ordered to pay rent for the period of occupation.
Ratio Decidendi
The court held that the purported sale of the suit property before the grant of Letters of Administration was illegal and contravened Section 45 of the Law of Succession Act. The plaintiff and his co-administrators had no capacity to sell the property, rendering the sale null and void ab initio. Consequently, the Defendant's occupation of the property was unlawful, and the Plaintiff was entitled to an eviction order and costs of the application.
Court Disposition
Application allowed. The sale was declared null and void. Eviction order granted. Costs awarded to the applicant.
Orders
- The Defendant shall vacate Plot Number 57 Limuru Market.
- The purported sale of the suit property to the Defendant is declared null and void.
Full Case Text
Judgment text and source record
17 paragraphs
IN THE HIGH COURT OF KENYA AT NAIROBI
HIGH COURT CIVIL CASE NO. 1302 OF 1998
JAMES THOGO MWAI……………………………………….PLAINTIFF
VERSUS
GEORGE KARIO………………………..…………………DEFENDANT
RULING
This is an application for an eviction order against the Defendant to vacate Plot Number 57 LIMURU MARKET (hereinafter the suit property) and for the Defendant to pay rent for the period he has been in occupation.
The application is brought under Order 39 Rule 1 of the Civil Procedure Rules, and Section 3 and 3A of the Civil Procedure Act.
The application is grounded on the grounds that the purported sale of the suit property before the grant of Letters of Administration was illegal and contravened Section 45 of the Law of Succession Act Cap. 160 of the Laws of Kenya and was therefore null and void abinitio and that the Defendant has since the said sale been in occupation.
James Mwai Thogo (deceased) is the registered proprietor of the suit property. Grant of Letters of Administration in respect of the deceased’s estate were issued on the 29th October, 1996.
By a resolution of some of the beneficiaries of the deceased’s estate it was decided to sell the suit property to the Defendant, The Plaintiff was not one of those who made the decision but it seems that after he wrote a letter dated the 6th February, 1995 he was included in the Transfer Agreement between the beneficiaries and the Defendant.
Section 45 of the Law of Succession Act provides that:-
“45 (1) Except so far as expressly authorised 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.”
By this provision, it is clear that there is no way the free property of a deceased person can be sold or in any other way disposed of without grant of Letters of Administration. The plaintiff and his Co-administrators therefore had no capacity to sell the suit property. The purported sale was therefore null and void. Accordingly, the application succeeds. The applicants shall have the costs of the application.
Delivered and dated at Nairobi this 7th day of March, 2001.
KASANGA MULWA
JUDGE