[2007] KEHC 2048 (KLR)
The court found that although the applicant had purchased the land from the deceased and paid the purchase price, she failed to obtain Land Control Board consent as required by law. Consequently, the sale agreement became void and unenforceable. The applicant was not a beneficiary of the estate and had no right to...
Source-derived case information.
- Citation
- [2007] KEHC 2048 (KLR)
- Parties
- Applicant: Jane Wangui Nguru; Respondent: David Mwaniki Mbiti; Respondent: Thomas Mugo Mbiti; Respondent: Stephen Muchoki Mbiti
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Application 21 of 2005
- Procedural Posture
- Succession Application / Judgment
- Outcome
- application dismissed with costs
- Legal Topics
- Revocation of Grant, Fraudulent Concealment, Land Sale Agreements, Land Control Act, Creditor Claims, Succession Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Wangui Nguru
Applicant
David Mwaniki Mbiti
Respondent
Thomas Mugo Mbiti
Respondent
Stephen Muchoki Mbiti
Respondent
Procedural Posture
Succession Application / Judgment
Legal Issues
- 1 Whether the grant of letters of administration was obtained fraudulently by false statement or concealment of material facts.
- 2 Whether the applicant, as a purchaser of land from the deceased, is entitled to revocation of the grant.
- 3 Whether lack of Land Control Board consent renders the sale agreement void and unenforceable.
Ratio Decidendi
The court found that although the applicant had purchased the land from the deceased and paid the purchase price, she failed to obtain Land Control Board consent as required by law. Consequently, the sale agreement became void and unenforceable. The applicant was not a beneficiary of the estate and had no right to be notified of the succession proceedings. Her claim to the land had already been dismissed in a previous suit, and she had not appealed that decision. The only remedy available to her was to claim back the purchase price as a creditor of the estate, not to seek revocation of the grant. There was no evidence of fraud or concealment by the respondents in obtaining the grant....
Court Disposition
application dismissed with costs
Orders
- The application for revocation of grant is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU Succession 21 of 2005
IN THE MATTER OF THE ESTATE OF MBITI MUTHIGIRE…(DCD)
JANE WANGUI NGURU…………………………………….APPLICANT
VERSUS
DAVID MWANIKI MBITI …………………………..1ST RESPONDENT
THOMAS MUGO MBITI……………...……………2ND RESPONDENT
STEPHEN MUCHOKI MBITI……………………..3RD RESPONDENT
JUDGMENT
The Applicant filed Summons to revoke the grant issued to first Respondent on 16. 7.1999. She gave grounds of application as follows:-
(a) Grant was obtained fraudulently by making false statement and the concealment of some material facts relevant to the cause and other grounds set out in the application.
In supporting affidavit she swears that she entered into a sale agreement with the deceased for purchase of property parcel No. Nthawa/Gituburi/1765 and that she paid purchase price and took possession during the lifetime of deceased. She gave evidence in court and confirmed that she never went to Land Board for Land Board Consent as required under Land Control Act Cap. 302.
Therefore the sale became void after prescribed time expired. She was not entitled to be informed of succession proceedings as she was not a beneficiary. She has not proved the grounds she has put forward. Then she says she had filed an Originating Summons claiming the land but the suit is 45/2001 was dismissed and she had not taken any appeal against dismissal. The position as shown by the evidence of both sides is that the Applicant was a purchaser of the land. There is no reason to doubt her on that issue.
However she never sought consent of the Land Board. The agreement became unenforceable up to now. Her remedy is to claim back her purchase price paid as provided under Land Control Act. In the case of Succession her claim is against administrator since she can only be a creditor of the estate.
I therefore find no proof of the grounds for the revocation of the grant. The application is dismissed with costs.
Dated this 3rd May, 2007.
J. N. KHAMINWA
JUDGE