Jeremiah Kamau Gitau & 2 Others V Wandai & 5 Others  EKLR
|Civil Case 2100 of 1987||01 Jan 1989|
Barabara Kiprugut Tanui
High Court at Nairobi (Milimani Law Courts)
Jeremiah Kamau Gitau & 2 others v Wandai & 5 others
Jeremiah Kamau Gitau & 2 others v Wandai & 5 others  eKLR
Gitau & 2 others v Wandai & 5 others
High Court, at Nairobi
Civil Case No 2100 of 1987
Succession – intermeddling with property – whether a contract for sale of shares in land which eventually becomes void amounts to intermeddling – Law of Succession Act (cap 160) section 45.
Succession – letters of administration - grant of letters of administration to take effect from the date of grant.
Consent – consent judgment – advocates entering into a consent on behalf of their clients without ascertaining whether clients had capacity to enter into a consent – whether such consent can be invalidated.
Civil Practice and Procedure – consent – invalidation of consent – whether party aggrieved to apply in the same suit or file a fresh suit.
The plaintiffs, who were administrators of the estate of one Daniel Gitau Mute, brought this suit seeking to nullify proceedings in a previous suit in which the defendants purported to sell a piece of land which they held in common shares with the deceased.
Although the sale did not take place as the purchaser failed to pay the balance of the purchase price within six months as stipulated in the agreement, a consent was entered into by the parties to the previous suit.
The plaintiffs in the present suit contended that the plaintiffs in the previous suit not having obtained letters of administration in respect of Mr Gitau’s estate, they had no legal capacity to enter into any consent and their entry into a sale agreement amounted to intermeddling with the affairs of the deceased.
1. Intermeddling with property of a dead person consists of taking possession, disposing or otherwise intermeddling with any free property.
2. In the instant case the act of intermeddling which could be considered was the fact that Jermiah Kamau Gitau signed the sale agreement. This agreement became void hence the deceased’s share remained intact.
3. An administrator of an estate derives his title from the grant of letters of administration and the deceased’s property rests on him only as from the date of grant.
4. The title of an administrator unlike that of an executor does not relate back so as to cure an invalidity of a suit purported to have been filed by an administrator in a representative capacity before a grant is made to him.
5. A consent judgment can be interfered with if given without sufficient material facts or in misapprehension or in ignorance of material facts.
6. The consent judgment could be challenged in the suit itself but that did not rule out the bringing of a separate suit.
1.Wasike v Wamboko  KLR 429
2. Ingall v Moran  1 KB 160; 60 TLR 120; 113 LJKB 298;  1 All ER 97
3. Hilton v Sutton Steam Laundry  KB 65; 115 LJKB 33;  2 All ER 425
4. Finnegan v Cementation Co Ltd  1 QB 688
5. Bowler v John Mowlem & Co  3 All ER 556
6. Brooke Bond Liebig (T) Ltd v Mallya  EA 266
Mitter, RC, (1953) Mulla on the Code of Civil Procedure Bombay: NM Tripathi Private Ltd 12th Edn vol II p937
1. Law of Succession Act (cap 160) section 45
2. Civil Procedure Rules (cap 21 Sub Leg) Order VII rule 4(1)