In Re Estate Of Barasa Kanenje Manya (Deceased) (Succession Cause 263 Of 2002)  KEHC 1 (KLR) (30 July 2020) (Ruling)
|Succession Cause 263 of 2002||30 Jul 2020|
William Musya Musyoka
High Court at Kakamega
In re Estate of Barasa Kanenje Manya (Deceased)
In re Estate of Barasa Kanenje Manya (Deceased) (Succession Cause 263 of 2002)  KEHC 1 (KLR) (30 July 2020) (Ruling)
The sale of a deceaseds property by his son before he had obtained representation to enable him administer the estate is not valid even where the son later on obtained representation
The applicants were persons who had allegedly bought portions of an asset of the estate of a deceased from a son of the deceased. The applicants filed the instant application seeking joinder as interested parties in the succession case whose subject matter was the deceaseds estate. Copies of the relevant memoranda in writing to support those sales were not attached to the affidavit sworn in support of the application. What was attached was an undated document, which was generated long after the sale and after the death of the seller.
The applicants averred that they had been assured by the deceaseds son that he would factor the sales in the administration of the estate of the deceased and title deeds of the portions that they had bought would be processed in their names. The applicants then sold their purported interests in the land to another person and had hoped that the administrators would honour the sale, only for them to turn around and seek to evict the person who bought the land from the applicants. That prompted the buyer to sue the applicants to recover the purchase price.
The applicants believed that they would be prejudiced if they were not made parties to the succession cause. They also argued that their interests in the land were not being protected. One of the administrators of the estate of the deceased filed a response and argued that the applicants were not liabilities of the estate, since they claimed to have bought the land from the deceaseds son who held no grant of letters of administration to the estate at the time he purported to sell the land. She averred that the deceaseds son could not validly sell the land of the deceased before his grant had been confirmed.
- What was the distinction between joinder and enjoinder of parties to a suit?
- Whether a grant of probate and a grant of letters of administration applied retrospectively.
- Whether the mere fact that a person was a surviving spouse or child of a deceased, made them a personal representative of the deceaseds estate?
- Whether the sale of a deceaseds property by his son before he had obtained a grant of letters of administration to enable him administer the estate was valid where the son later on obtained the grant?
- Whether an administrator of a deceased's estate could sell land belonging to the deceaseds estate before confirmation of grant.
- What was the remedy available to a person who bought land belonging to a deceaseds estate from the administrator of the estate before the confirmation of grant of letters of administration?
- Whether the High Court had the jurisdiction to make determinations relating to title to land, use and occupation of land and adverse possession of land.
Relevant provisions of the law
Law of Succession Act, Cap 160 Laws of Kenya
Section 80 - When grant takes effect
- A grant of probate shall establish the will as from the date of death, and shall render valid all intermediate acts of the executor or executors to whom the grant is made consistent with his or their duties as such.
- A grant of letters of administration, with or without the will annexed, shall take effect only as from the date of such grant.
- Join and enjoin existed in the English lexicon, but they did not mean the same thing. To join a party to a suit meant to add that person to the suit. To enjoin, in law, meant to injunct, or to bar a party from doing something. Enjoinder meant a prohibition ordered by injunction. The parties were acting in person, and, as lay persons, they could not be familiar with legalese, and, therefore, the meanings attached, in law, to the words join, enjoin, joinder and enjoinder. Consequently, the court stretched the application of article 159 of the Constitution of Kenya, 2010 (Constitution) and rule 73 of the Probate and Administration Rules, to presume that the applicants intended to apply for joinder as opposed to enjoinder and proceeded to determine the application on its merits based on that presumption.
- The applicants did not purchase the portions of the asset of the estate that they laid claim to from the deceased, but rather from a son of the deceased. They were not creditors of the estate. They would only have a claim against the estate if they had transacted over the land with the deceased owner himself. The transaction in question appeared to have been entered into after the deceased died because the applicants had not indicated the date they entered into the transaction, nor attached documents evidencing the sale. The document placed before the court was not the sale agreement signed by the applicants and the deceaseds son, since it was generated after the deceaseds son had died.
- The applicants did not deal with the deceased. The transaction that they had with the deceaseds son did not bind the deceased, since he was already dead, and, therefore, it was not binding on his estate. The applicants had no claim against the estate, they were not creditors of the estate, and they could not possibly be considered as liabilities of the estate.
- The property of a dead person vested in his estate upon his death. In turn, when personal representatives were appointed to administer the estate, whether in testacy or intestacy, the property then vested in the personal representatives by dint of section 79 of the Law of Succession Act, Cap 160, Laws of Kenya. Section 79 should be read together with section 80 of the Law of Succession Act, which stated when grants of representation became effective. A grant of probate related back to the date of death, and, therefore, it applied retrospectively, to authenticate any acts of the executor done between the date of death and the date of the making of the grant. A grant of letters of administration was effective from the date of the making of the grant, and it did not relate back or apply retroactively.
- The deceased died intestate on March 7, 1993. Representation to his intestate estate was made on October 14, 2003, and a grant of letters of administration intestate was issued, on October 21, 2003. That was more than ten years after the demise of the deceased. Whatever any of the persons, who were subsequently appointed as administrators could have done with the property of the estate, between March 7, 1993 and October 14, 2003, was unlawful, for the estate of the deceased did not vest in them until October 14, 2003.
- The mere fact that a person was a surviving spouse or child of the deceased did not make him or her a personal representative of the deceased. One only became a personal representative, usually known as administrator, in the event of intestacy, upon being appointed by the court as such. The property of the intestate would not vest in any person until such person was appointed administrator by the court. Any transaction, entered into with a person who was yet to be appointed administrator, over estate assets, would be null and void, since such assets would not have vested in such a person, and such person would have no standing in law to transact over such property. Section 45 of the Law of Succession Act outlawed such dealings, and designated them as amounting to intermeddling with the estate of the deceased, which was a criminal offence, according to that provision.
- Section 79 of the Law of Succession Act should be read together with sections 82 and 83 of the Act, which set out the powers and duties of administrators. Once the assets of the deceased were vested in the administrators, the administrators would then be entitled to exercise the powers conferred upon administrators by section 82, and they were subject to the duties that were imposed by section 83. The powers included powers to enter into contracts with respect to assets of the estate, to sue and be sued with regard to estate assets, among others. Entering into contracts over estate assets would include converting estate assets by way of sale. However, section 82(b)(ii) of the Act outlawed sale of immovable assets of an estate before the grant had been confirmed. That would mean that any such sale would be unlawful and unenforceable, unless it happened with leave of the court.
- The alleged sale of land did not happen during the deceaseds lifetime, and did not involve the deceased, but after his death, involving one of his surviving sons before he had obtained representation to enable him administer the estate. That would mean, by dint of section 79 of the Law of Succession Act, that the assets of the estate had not yet vested in the deceaseds son. He therefore did not have power by dint of section 82 of the Law of Succession Act, to sell the property. He could not enter into any binding contract with anybody over any of the assets that made up the estate of the deceased.
- By dint of section 45 of the Law of Succession Act, any transaction between the deceaseds son and any other person, amounted to intermeddling with the estate of the deceased and those involved, therefore, would be deemed to have engaged in criminal activity and should have been prosecuted. The sales contravened section 45 and 82 of the Law of Succession Act and there was no possibility that the applicants could have acquired any valid title from the sales, for the person who purported to sell the property to them had no title to it. He had nothing to sell and the applicants bought nothing from him.
- From the record before the court, the deceaseds son, the person with whom the applicants transacted, was one of the persons appointed as administrators on October 14, 2003. When he entered into the sale agreement of May 26, 2003, he had not yet been appointed administrator of the estate of the deceased. The property in question, therefore, had not yet vested in him as administrator by virtue of section 79 of the Law of Succession Act and therefore he could not exercise the powers of sale over that property given by section 82 of the Law of Succession Act. He had no title to the property and had no power to sell it.
- The deceaseds son had no property to sell and he conferred no good title to the prompted buyer. The transaction was unlawful and amounted to a criminal offence according to section 45 of the Law of Succession Act. That he was subsequently appointed administrator of the estate did not help him, nor salvage the transaction, since the deceased had died intestate, and by dint of section 80 of the Law of Succession Act, a grant of letters of administration intestate did not relate back to the date of death, so as to authenticate any of the acts of the administrator, done between the date of death and the date of appointment. The transaction of May 26, 2003 was as dead as a dodo.
- The second agreement of February 19, 2004, was entered into after the deceaseds son had been appointed one of the administrators of the estate, on October 14, 2003. As at the date of the transaction, the asset the subject of the sale vested in him by virtue of section 79 of the Law of Succession Act. He could, by virtue of section 82 of the Law of Succession Act, exercise power of sale over it but subject to section 82(b)(ii). The asset was immovable, being a parcel of land. It could not be sold before confirmation of grant, unless the administrator had obtained prior leave or permission of court to sell it.
- The record indicated that the grant was confirmed on June 15, 2011, on an application dated April 6, 2011. That would mean that the sale transaction of February 19, 2004 happened before the grant was confirmed, and the sale, therefore, fell afoul of section 82(b)(ii) of the Law of Succession Act. The court had not come across any order from the instant court allowing the deceaseds son to sell the property before the grant was confirmed. The sale happened in contravention of the law, section 82(b)(ii), and therefore it was unlawful and unenforceable. The purported buyer acquired no rights whatsoever under that contract of sale.
- The only remedy available to the buyers, with regard to the two transactions, was to pursue the person who purported to sell the property to them. The applicants were not survivors of the deceased, for they claimed, not as surviving spouses or children or grandchildren of the deceased, but as liabilities or creditors of the estate. However, they did not fall within the category of creditors or liabilities. They had no role nor place in the succession cause, to warrant their being joined to the cause as interested parties, or in any other capacity for that matter. Their remedy lay in suing the deceaseds son or his estate to either recover the land that he sold to them or for refund of the purchase money that he received from them. Disputes on ownership of or title to land were not suitable for determination within a succession cause.
- The High Court had no jurisdiction to make determinations relating to title to land, and use and occupation of land which were some of the issues that arose from the instant application. That jurisdiction lay with the Environment and Land Court by virtue of articles 162(2) and 165(5) of the Constitution, the Environment and Land Court Act (No. 19 of 2011), sections 2 and 101 of the Land Registration Act (No. 3 of 2012) and sections 2 and 150 of the Land Act (No. 6 of 2012). The applicants should have agitated their claims through the channels established under those statutes. Adverse possession was about occupation and use of title to land, which, took the matter way out of the jurisdiction of the High Court.