Weekly Newsletter 021/2019



Kenya Law

Weekly Newsletter


Plaintiff awarded Kshs 27 in a defamation suit.
Christopher Ndarathi Murungaru v John Githongo [2019] eKLR
Civil Suit 446 of 2006
High Court at Nairobi
J K Sergon, J
May 2, 2019
Reported Kakai Toili
Download the Decision
 
Tort Law-defamation-libel-defences-qualified privilege and public interest- circumstances in which the defences of qualified and public interest were available- where the defendant published a report addressed to the former President which report was understood to mean that the plaintiff was engaged in corrupt practices-what were the circumstances in which a defendant could rely on the defences of qualified privilege and public interest where the defendant published a defamatory report
Evidence Law-evidence-tendering of evidence and availing of witnesses-failure of tendering of evidence and availing of witnesses-where a defendant in a defamation suit alleged that the plaintiff had no reputation to protect-effect of-what was the effect of failure to tender evidence or to avail witnesses where a defendant in a defamation suit alleged that the plaintiff had no reputation to protect

Brief Facts:
The plaintiff alleged that the defendant published a report or statement (publication) addressed to the former President of the Republic of Kenya (former President). The plaintiff contended that publication in its natural and ordinary meaning meant that he inter alia engaged in corrupt practices, lacked in integrity and honesty, was involved in obstruction of justice, was unfit to hold public office, was the mastermind and or the key architect of anglo-leasing scandal and that he had no regard to the rule of law and common decency. As a result of the publication the plaintiff claimed his reputation was gravely injured and that he had suffered both mental agony and embarrassment. Aggrieved by the defendant’s actions, the plaintiff filed the instant suit.
The plaintiff contended that the publication was not founded on any evidence linking him to corrupt dealings. The plaintiff alleged that the defendant posted or caused to be posted and published the publication and defamatory words on the internet and circulated worldwide. The plaintiff further alleged that the defendant caused to be published the offensive publication which was serialized verbatim by all the print media in Kenya and posted on the internet in their respective websites for worldwide circulation. It was further alleged that the defendant gave interviews to broadcasting stations and gave lectures in many parts of the world thus repeating the publication.

 
Issues:
  1. What were the circumstances in which a defendant could rely on the defences of qualified privilege and public interest in a defamation suit?
  2. What was the effect of failure to tender evidence or to avail witnesses where a defendant in a defamation suit alleged that the plaintiff had no reputation to protect?
Held:
  1. It was apparent that though the defendant denied disseminating the information to other persons and or media houses other than the former President and Anti-Corruption Commission there was credible evidence that he deliberately authored and caused the same to be published by other media houses both in print and electronic. In the book titled ‘Its our turn to eat’, the author narrated how the publication came to her possession. It was stated that the defendant personally stage managed and went to great lengths to ensure that the publication was done.
  2. It could not be true to suggest that the Daily Nation would at great cost send two senior journalists to seek for a clarification of what they already had.  It was evident that the Daily Nation executed the plot as planned by the defendant by serializing the publication with daily banner headlines. Those newspapers were also available online hence globally within reach. The defendant was therefore not candid when he claimed that he did not give the dossier to the media houses. The defendant further republished the offensive publication when he granted interviews to various television stations.  In the circumstances the defences of qualified privilege and public interest were not available to the defendant. The aforesaid defences could have been available to the defendant had he restricted the dissemination of the publication dossier to the former President and the Director, Anti-Corruption Commission.
  3. A careful reading of the publication would reveal that the plaintiff was depicted as a person who inter alia engaged himself in corrupt practices, lacked integrity and was dishonest. The publication also portrayed the plaintiff as the mastermind of the anglo-leasing scandal and or type of contracts. There was no iota of evidence presented by the defendant and his witness linking the plaintiff to corrupt practices. Therefore the contents of the publication in the absence of evidence to establish their truthfulness or justification meant that the publication was defamatory of the plaintiff.
  4. There was no factual basis to assert that the plaintiff was engaged in corruption. The defendant’s job description as a Permanent Secretary did not mandate him to defame the plaintiff. He acted outside his core mandate of advising the former President on policies and strategies of fighting corruption.  Therefore, he was personally liable for his actions.
  5. The defendant was likely to republish the offensive publication as against the plaintiff unless he was restrained. The plaintiff had established on a balance of probabilities that he was entitled to the prayer sought.
  6. The plaintiff was able to show that his reputation was destroyed by the publication. There was uncontroverted evidence that as a result of the publication the plaintiff’s supporters, business associates and friends lost confidence and faith in him. There was also uncontested evidence tendered showing that as a result of the publication, the plaintiff lost the Kieni Parliamentary seat, his cabinet portfolio and friends.
  7. It was unfortunate that the defendant failed to neither tender evidence nor summon witnesses to establish that the plaintiff had no reputation to protect. From the evidence tendered, the plaintiff’s reputation was destroyed by the publication hence he was entitled to be paid damages.
  8. In the circumstances of the instant case the plaintiff should be awarded both general, aggravated and punitive damages. It was apparent from the evidence that the defendant intended to have the publication to be extensive, global in nature and with intensity. It would appear the defendant wanted to inflict maximum damage on the plaintiff.
Suit allowed with costs to the plaintiff
 

Orders:
  1. Order of injunction as prayed in the plaint.
  2. General damages- Kshs 20,000,000/=
  3. Aggravated damages-Kshs 5,000,000/=
  4. Exemplary damages- Kshs 2,000,000/=
                           Total- Kshs 27,000,000/=
  5. The total amount to attract interest at court rates from the date of the judgment until full settlement.
Kenya Law
Case Updates Issue 020/2019
Case Summaries

CIVIL PROCEDURE AND PRACTICE A sub-lease issued by a donor of a power of attorney is valid even where the donor dies before giving consent

Osman Tahir Sheikh Said & another v Nomad Energy and 6 others
Environment &Land Suit 168 of 2018
E O Obaga, J
January 17, 2019
Reported by Kadzo Jally

Download the Decision

Civil Practice and Procedure-institution of suits-locus standi-executor of a will-where a will was being challenged-locus standi to institute suit without a grant of probate-whether an executor of a will had the locus standi to institute a suit where a will was being challenged, the Law of Succession Act, section 80(1) and 80(2)
Civil Practice and Procedure-parties to a suit- joinder of parties-where there was an existing party who was capable of litigating on its own and was on record in the suit-whether a person could be enjoined to litigate on behalf of a party who was capable of litigating on its own and was on record in the suit
Jurisdiction-jurisdiction of the Environment and Land Court(ELC)-jurisdiction of the Probate Court-jurisdiction of the ELC vis-à-vis the Probate Court-claim that the will was a forgery-whether the Environmental and Land Court (ELC) had the jurisdiction to determine matters of forgery of wills and succession

Brief facts:
The applicants in the instant suit were the executors and beneficiaries of the suit property registered in the name of the deceased on which a petrol station was constructed and was being run for the benefit of the deceased and his beneficiaries. Upon the demise of the deceased, the defendant/respondent, M/s Nomad Energy Limited moved into the suit property and branded the petrol station with its colors on the premise that the defendant/respondent had a lease from Capital Oil Limited. To that effect, the applicants filed two applications, with the first application seeking, inter alia, a temporary injunction restraining the defendants from trespassing on or carrying on any other business on any part of that property; an interlocutory injunction, compelling the defendants to remove all its structures, equipment, unlawfully brought by the defendant onto the property and to grant the plaintiffs vacant possession of it pending the hearing and determination of the suit. The second application was brought by the sons of the deceased and one of the widows who were seeking to be enjoined in the case as interested parties and for the suit to be dismissed or the proceedings stayed.

Issues:

  1. Whether an executor of a will had the locus standi to institute a suit where a will was being challenged.
  2. Whether a person could be enjoined to litigate on behalf of a party who was capable of litigating on its own and who was on record in the suit.
  3. Whether a sub-lease issued by a donor of a Power of Attorney was valid where the donor died before giving consent
  4. Whether an Environmental and Land Court (ELC) had the jurisdiction to determine matters on allegations of forgery of wills and succession.Read More..

Held :

  1. Executors of a will of a deceased were at liberty to file proceedings to protect the property of the deceased even before grant of probate. Contrasting section 80(1) and 80(2) of the Law of Succession, the Court of Appeal had held that in the case of an executor, he could perform most of the acts appertaining to his office before probate including the bringing of a fresh action because he derived title from the will and the property of the deceased vested in him from the moment of the intestate’s death. Where the will of the deceased was being challenged, the executorship of the will could not remain in limbo until the challenge failed.
  2. The will of the deceased was being challenged in courts in Mombasa. An executor of a will of a deceased was free to bring proceedings even where the will was being challenged. Therefore, the applicants had the locus standi to bring the instant suit and application.
  3. Before a prohibitory interlocutory injunction could be granted, the applicant had to demonstrate that he had a prima facie case with probability of success. In grant of a mandatory injunction, the applicant had to demonstrate that there were special circumstances which existed which called for its grant. For example, the applicant was expected to show that the case was a clear one which could be remedied in a summary manner or that the respondent had tried to steal a match on the applicant.
  4. There was nothing wrong with the registration of a lease after the demise of a donor if the lease had been granted before their death. In the instant case, the deceased had granted a general power of attorney to the donor over his properties who granted a lease over the suit property to Capital Oil Limited for a period of 20 years before the demise of the deceased. Further, there was nothing wrong with Capital Oil entering into a sub-lease with the respondent after the demise of the deceased because there was grant of lease for 20 years which had been executed by a person who had a power of attorney over the properties of the deceased including the suit property.
  5. The fact that there was no evidence that there was consent to sublet could not defeat the sub-lease held by the respondent. Being an interlocutory application, nothing much could rest on grant or non-grant of consent to sub-let and as such, there was no basis to grant either a temporary prohibitory injunction or mandatory injunction.
  6. In regards to the second application, if the applicants thought that the deceased’s will was a forgery, which issue could only be dealt with by the Kadhi’s Court or the Family Division of the High Court in Mombasa. In addition, the applicants could not seek to litigate on behalf of a party who was capable of litigating on its own and was on record in the suit. In any case, the application for injunction had no basis as the applicants had no suit on which to base it.
  7. Case law had developed the parameters upon which a party could be allowed into a suit. Some of those parameters were that it had to be demonstrated that the Court could not grant an effective remedy in the absence of the intended interested party. In the instant case the Court could pass a decree without the presence of the intended interested parties. The intended interested parties were raising issues to do with succession. The court was not the forum for such. The best forum was the Succession Court as demonstrated by the annexure to the applicants’ application

Applications dismissed with no orders to cost.

APPEALS The Supreme Court allows an application for extension of time to file an appeal where the Court of Appeal failed to provide certified copies of typed proceedings in good time.

Director of Public Prosecutions v Michael Sistu Mwaura Kamau & 4 others [2019] eKLR
Application No. 12 of 2018
Supreme Court of Kenya at Nairobi
P M Mwilu, DCJ & VP; M K Ibrahim, S C Wanjala, N Ndungu, & I Lenaola, SCJJ
April 30, 2019.
Reported by Kakai Toili

Download the Decision

Appeals-appeals to the Supreme Court-timelines for filing appeals-extension of time for filing appeals-circumstances in which the timelines for filing an appeal could be extended-failure of the Court of Appeal to provide certified copies of typed proceedings in good time-whether an application of extension of time to file an appeal at the Supreme Court could be allowed where the Court of Appeal failed to provide certified copies of typed proceedings in good time-Supreme Court Act, 2011, sections21(2) & 23(2)(b); Supreme Court Rules, 2012, rules 21, 23 & 53

Brief facts:
The applicant filed the instant application for extension of time to file an appeal out of time and for stay of execution against the judgment and orders of the Court of Appeal. The applicant contended that the delay in filing the appeal was occasioned by the Court of Appeal’s failure to provide certified copies of typed proceedings, despite having applied for the same early. The applicant also contended that the intended appeal concerned a substantial outlay of public resources and that unless the orders sought were granted, there was real danger that over  127 pending cases of corruption, bribery and economic crime would be prematurely  terminated dealing a blow to the administration of justice and the  public interest.

Issue:

  1. Whether an application of extension of time to file an appeal at the Supreme Court could be allowed where the Court of Appeal failed to provide certified copies of typed proceedings in good time. Read More..

Held :

  1. Pursuant to the provisions of sections 21(2) and 23(2)(b) of the Supreme Court Act, 2011 and rules 21, 23 and 53 of the Supreme Court Rules, 2012, the instant application satisfied the principles on extension of time set by the Court

Application allowed

  1. The applicant to file its appeal within 14 days from the date of the ruling.
  2. Costs to be in the cause.
CRIMINAL LAW Circumstances where a police officer can rely on the defense of self-defense in a fatal shooting

Republic v Benjamin Kahindi Changawa & another [2018] eKLR
Criminal Case No 66 of 2015
High Court at Nairobi
S N Mutuku, J
November 1, 2018
Reported by Kadzo Jally and Ian Kiptoo

Download the Decision

Criminal Law-murder-ingredients of the offence of murder-burden of proof- where accused persons relied on the defence of self-defence-what were the ingredients that the prosecution needed to prove in an offence of murder -Penal Code, sections 203 and 204
Criminal Law-murder-defences-self-defence-subjective test-reasonable belief that accused’s life or that of another was in danger-where deceased had surrendered-claim that force used was unreasonable and not proportionate- under what circumstances could a police officer rely on the defence of self-defence in a fatal shooting-what were the instances in which a police officer could use force or firearms-Constitution of Kenya, 2010, articles 26, 28 and 244; Penal Code, section 17; National Police Service Act, section 61 (1) and (2), Sixth Schedule of the National Police Service Act, Part A (1) and (2); Part B (1) and (2)

Brief Facts:
On the night of October 6, 2014, the three deceased were at M-Club bar when a confrontation occurred between one of the deceased, a police officer, and the watchman of the establishment when it was discovered that the deceased had a gun. The group he was with was overpowered by the watchman and waitresses and the AP with the gun was pushed and locked inside the kitchen of the club as the supervisor called the police.
The two accused persons were police officers who were carrying out their patrol duties in Kangemi when they responded to a call about an on-going robbery at M-Club. On arrival at the club, the officers asked the watchman to unlock the kitchen door and allow the deceased with the gun out. The three customers were told to surrender, shots were fired and the three customers were all shot dead. Consequently, the two accused persons were charged with murder.

Issues:

  1. What were the ingredients that the prosecution needed to prove in an offence of murder?
  2. Under what circumstances could a police officer rely on the defence of self-defence in a fatal shooting?
  3. What were the instances in which a police officer could use force or firearms under the National Police Service Act?Read More...

Relevant Provisions of the Law
The National Police Service Act (No. 11A of 2011)
Section 61
 (1) Subject to subsection (2), a police officer shall perform the functions and exercise the powers conferred by the Constitution and this Act by use of non-violent means.
 (2) Despite subsection (1), a police officer may use force and firearms in accordance with the rules on the use of force and firearms contained in the Sixth Schedule.

Sixth Schedule,
B – Conditions as to the use of firearms
(1) Firearms may only be used when less extreme means are inadequate and for the following purposes –

 (a) Saving or protecting the life of the officer or other person;
 (b) in self-defence or in defence of other person against imminent threat of life or serious injury;
 (c) protection of life and property through justifiable use of force;
 (d) preventing a person charged with a felony from escaping lawful custody; and
(e) preventing a person who attempts to rescue or rescues a person charged with a felony from escaping lawful custody.

 (2) An officer intending to use firearms shall identify themselves and give clear warning of their intention to use firearms, with sufficient time for the warning to be observed, except (a) where doing so would place the officer or other person at risk of death or serious harm; or (b) if it would be clearly inappropriate or pointless in the circumstances.

Held:

  1. The prosecution had to prove beyond reasonable doubt a crime like murder, the ingredients of which were found in section 203 of the Penal Code. The prosecution had to prove the fact of death by unlawful means, the identity of the person who had caused that death and the element of malice aforethought on the part of the accused. An accused person did not assume the burden of proving his innocence. The duty to prove the guilt of an accused person lay with the prosecution and did not shift.
  2. Section 17 of the Penal Code afforded an accused person the defence of self-defence where they acted in defence of person or property. The test to be applied where the defence of self-defence was raised was the subjective test and the applicable principles for the defence were those of the English Common Law, which the court had discussed in detail in Ahmed Mohammed Omar & 5 others v Republic [2014] eKLR.
  3.  The accused persons were issued with firearms and ammunition; they used some of the ammunition to shoot at the deceased persons; the deceased persons died as a result of that shooting and the accused persons returned fewer rounds of ammunition than they had been issued with. Further, the accused persons were on official duty when the shooting occurred. In addition, the accused persons also claimed that they identified themselves and ordered the deceased persons to surrender but the deceased failed to obey that order and shot at the accused persons necessitating the return of fire by the accused persons. When confronted with a situation where security of the person or of property was at stake a police officer, whose duty was to defend the person and property, could not wait until he was struck before striking in self-defence.
  4. There were four prosecution witnesses who were present at the club when the shooting occurred and it was their collective evidence that the five customers who included the three deceased persons were rowdy. From the evidence of the four waitresses, APC Onchuru had surrendered the pistol to the accused persons before shooting took place. The evidence was clear that the other two deceased persons were not armed and they had surrendered as ordered by the police by lying on the ground. The bodies were found facing the same direction and close to each other which indicated that the deceased persons were killed while near each other. Had they been running away from the police or had they tried to fight back, their bodies would not have been near each other as described by witnesses and as seen in the photographs. 
  5. The gist of the defence of self-defence was that the person raising it had to reasonably believe that their life or that of another person was in danger as the time they acted in self-defence even if that person acted under a mistake as to the facts. Such a person had to be judged according to his mistaken belief of the facts regardless of whether, viewed objectively, his mistake was reasonable. The test of self-defence was that a person could use such force in the defence of himself or another as was reasonable in the circumstances as he honestly believed them to be. Despite the impression created by the 1st accused, that there was a fierce exchange of fire between the ‘robbers’ and the accused persons, there was no evidence from the prosecution witnesses that the three deceased shot at the police officers.
  6. The accused persons were not in any danger given that after they ordered the deceased persons to surrender, two of them lay on the ground in surrender and one lifted the pistol and handed the pistol to the accused persons before the shooting started. The instant case was distinguishable from the Ahmed Mohammed case as the deceased persons had surrendered. The three deceased did not shoot the watchman and the four women working in the club when a confrontation occurred before the police were called in. They had been subdued to the extent that the armed one had been locked inside the kitchen. In the Ahmed Mohammed case, the police did all they could to warn the deceased persons including shooting in the air which the accused in the instant case did not.
  7. The Constitution of Kenya, 2010 (Constitution) under article 244 mandated the National Police Service, inter alia, to strive for the highest standards of professionalism and discipline among its members; to comply with constitutional standards of human rights and fundamental freedoms; to train staff to the highest possible standards of competence and integrity; and to respect human rights and fundamental freedoms and dignity. The Constitution was clear under article 26 that every person had a right to life and that a person should not be deprived of life intentionally, except to the extent by the Constitution or other written law. It was also clear under article 28 that every person had inherent dignity and the right to have that dignity respected and protected.
  8. Police officers, in the performance of their very difficult and sometimes life threatening duties were allowed by the law to use firearms but in a very controlled manner as prescribed under section 61 of the National Police Service Act (No. 11A of 2011). The Sixth Schedule of the Act provided more specific instances when police officers could use force. Part A of the Schedule in (1) and (2) stated that a police officer had to always attempt to use non-violent means first and force could only be employed when non-violent means were ineffective or without any promise of achieving the intended result and that the force used had to be proportionate to the objective to be achieved, the seriousness of the offence, and the resistance of the person against whom it was used, and only to the extent necessary while adhering to the provisions of the law and the Standing Orders. Part B of the Sixth Schedule gave the conditions to be met in the use of firearms to include saving or protecting the life of the officer; in self-defence or in defence of other persons against imminent threat of life; and protection of life and property through justifiable force.
  9. The accused persons used force that was not proportionate to the objective to be achieved, which was arresting the deceased persons. The Court was unable to reconcile the fact that the two accused persons under trial shot and killed the three deceased persons even when the three had surrendered and posed no danger to the two accused persons, any other person at the scene or to any property. The three deceased persons had surrendered, the two without the pistol had laid on the floor in surrender and APC Onchuru surrendered the pistol to the accused persons before he was fatally shot.
  10. The numerous gun-shot wounds suffered by the deceased persons were proof enough of the manner in which they were killed. The accused persons were not trying to immobilize the deceased persons. If that were the case they would have used non-violent means and if not successful, they would have shot them on the parts of the body that would have made them harmless to anyone and then call for reinforcements if that was necessary. They shot and used a total of twelve bullets, 10 of them from the rifle being used by the 1st accused and 2 from the rifle being used by the 2nd accused. Each of the deceased persons had gun shots on the head among other sensitive parts of the body including the chest and abdomen. The intention of the accused persons, given the nature of the wounds inflicted on the deceased persons and the part of the body shot, could only have been to kill the deceased or to the very least to maim them.
  11. As to who used the pistol issued to APC Onchuru, there was evidence from the examining doctor that Onchuru had gun-shot wounds from high and low velocity firearms. That meant that he was shot with both the pistol and the AK 47 rifle. The only logical conclusion was that one of the accused persons who took the pistol from Onchuru used the same gun on Onchuru as well as the AK 47 rifle in his possession.
  12. The prosecution had proved beyond reasonable doubt all the ingredients of murder in the three counts jointly facing the accused persons. There was sufficient evidence to prove that the deceased persons died as shown in the three counts of murder and that their deaths were unlawful. Further, that the accused persons acted outside the law in performing their duties and shot to death the three deceased persons with malice aforethought. The defence of self-defence was not available to them jointly or to any of them individually.

The accused were found guilty of murder and conviction entered for the offence of murder contrary to section 203 as read with section 204 of the Penal Code against each of them in all the three counts.

SUCCESSION LAW The effect of the purchase of property belonging to a deceased’s estate from a person with defective letters of administration, where the purchaser had made substantial developments on the property

In re Estate of Ibrahim Hassan Alias Sheikh Ibrahim Hassan (Deceased) [2019] eKLR
Succession Cause 36 of 2017
High Court at Kajiado
R Nyakundi, J
February 13, 2019
Reported by Kakai Toili and Amina Yunus

Download the Decision

Succession Law- probate and administration-grant of letters of administration -revocation of grants-locus standi to apply for revocation-where a grandson sought to revoke the grant issued in respect of his grandfather’s estate-where the grandson’s deceased father was a beneficiary of the estate-whether a grandson had the locus standi to institute legal proceedings with regard to his grandfather’s estate where the grandson’s deceased father was a beneficiary of the estate-Law of Succession Act, sections 29 & 76; Probate and Administration Rules, rule 17 (1)
 Succession Law-probate and administration-grant of letters of administration-application for application for grant of letters of administration -requirements-listing of beneficiaries of an estate-failure to list all the beneficiaries of an estate-effect of-what was the effect of failing to list all the beneficiaries of an estate in an application for grant of letters of administration-Law of Succession Act, sections 29 & 76; Probate and Administration Rules, rule 17 (1)
Succession Law–probate and administration– grant of letters of administration-defective letters of administration-where a person purchased property of a deceased’s estate from a person with defective letters of administration-where the purchaser made substantial development on the suit property-effect of-what were the factors to consider in determining whether a person, who purchased property of a deceased’s estate from a person with defective letters of administration, was a bona fide purchaser for value-Constitution of Kenya, 2010, article 159; Land Registration Act, section 26(1); Law of Succession Act, section 76; Probate and Administration Rules, rule 73

Brief facts:
The respondent petitioned for letters of administration for the estate of the applicant’s deceased’s grandfather and a grant was issued and later confirmed. In the certificate of confirmation of the grant, three beneficiaries, the respondent and her two deceased sisters, were entitled to the suit property. The suit property was thereafter sold to the interested party who claimed that he had done huge investments on the suit property up to an estimated worth of Kshs. 40,000,000.00/=. The applicant, who was a son of the respondent’s brother, filed the instant application for a revocation of the said grant on the grounds that it was obtained fraudulently and by concealment from court of material facts.
The respondent claimed that on carrying out searches in various registries it turned out that the suit property did not exist, hence there was nothing to distribute as anticipated. The interested party claimed to have conducted a search which together with the green card depicted that the respondent and her two sisters were the first registered proprietors of the suit property and at the time he purchased the property, the respondent and her two deceased sisters were the joint proprietors of the suit property.

Issues:

  1. Whether a grandson had the locus standi to institute legal proceedings with regard to his grandfather’s estate where the grandson’s deceased father was a beneficiary of the estate.
  2. What was the effect of failing to list all the beneficiaries of an estate in an application for grant of letters of administration?
  3. What were the factors to consider in determining whether a person, who purchased property of a deceased’s estate from a person with defective letters of administration, was a bona fide purchaser for value?
  4. What was the effect of the purchase of property belonging to a deceased’s estate from a person with defective letters of administration, where the purchaser had made substantial developments on the property? Read More...

Relevant provision of the law
Law of Succession Act
Section 76
A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—

  1. that the proceedings to obtain the grant were defective in substance;
  2. that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
  3. that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;

 Probate and Administration Rules
Rule 73
Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

Rule 17(1)
Any person who has not applied for a grant to the estate of a deceased and wishes to object to the making of a grant which has already applied for by another person may do so.

Held:

  1. Locus standi was basically the right to appear or be heard in court or other proceedings. That meant if one alleged the lack of the same in certain court proceedings, he/she meant that party could not be heard, despite whether or not he/she had a case worth listening. Issues regarding locus standi were critical preliminary issues which had to be dealt with and settled before dwelling into other substantive issues.
  2. The position in law regarding locus standi in succession matters was well settled. A litigant was clothed with locus standi upon obtaining a limited or a full grant of letters of administration in cases of intestate succession. Under section 76 of the Law of Succession Act, any party interested in the estate of the deceased could bring the application contemplated under that section and/or rule 2 as read with rule 17(1) of the Probate and Administration Rules.
  3. The evidence on record suggested that the applicant brought the instant proceedings on behalf of his deceased father who was the beneficiary to his father’s estate. The applicant’s interest emanated from the fact that his father was a beneficiary to the suit property, thus the applicant being dependent to his father’s estate within the provisions of section 29 of the Law of succession Act, he acquired an interest in his grandfather’s estate; the suit property by virtue of his father’s share. Therefore, the instant application was properly before the Court.
  4. The respondent had all the intention to disinherit the applicant’s father and her sister of the estate in question as seen in the estate account. She deliberately left out their names on the list of beneficiaries when she applied for the Grant of Letters of Administration and the subsequent confirmation of the same. The Grant of Probate or Letters of Administration to the respondent on April 22, 1997 and confirmed on May 15, 1998 was defective as the same was obtained fraudulently and by concealment from court of material facts, that was the exclusion of the applicant’s father and her sister on the list of beneficiaries.
  5. The applicant’s father and his sister, who were left out in the application for the grant, were beneficiaries to the estate in question and were entitled to a share of the same. All dealings including transfers of the title to the suit property were null and void since the title that was held by the respondent and her two deceased sisters was defective. That meant that the suit property reverted to the beneficiaries of the estate in question.
  6. The suit property exchanged hands and it was in the hands of the interested party who had purchased the said property for value. Where assets had been misapplied by personal representatives and were traceable into the hands of a particular person, the law allowed the beneficiaries entitled to such assets to follow them into the hands of the person holding such property. An exception to that general rule was in a case where the holder of such property was a bona fide purchaser for value. A bona fide purchaser was one who purchased something for value without notice of another’s claim to the property or without actual or constructive notice of any defects in or infirmities, claims or equities against the seller’s title.
  7. For a purchaser to successfully rely on the bona fide doctrine, he had to prove the following;
    1. he held a certificate of title,he purchased the property in good faith, he had no knowledge of the fraud,the vendors had apparent valid title,he purchased without notice of any fraud,
    2. he was not party to any fraud.
  8. Under section 26(1) of the Land Registration Act, the title was prima facie evidence that the person named as proprietor of the land was the absolute and indefeasible owner, and such title could only be challenged on the ground of fraud ,misrepresentation or if proved that the title had been acquired illegally, un-procedurally or through corrupt scheme. In the instant case, the interested party relied heavily on the search he claimed to have conducted as well as the green card that was produced as part of the evidence on record. Those two depicted that the respondent and her two sisters were the first registered proprietors of the suit property and at the time the interested party purchased the property, the respondent and her two deceased sisters were the joint proprietors of the suit property.A search at various registries alone was not enough to curb the risk of acquiring property that had a defective title.
  9. A search alone was not proof of title to a parcel of land. In the circumstances of the instant case, when the interested party did a search at the various registries, he found the respondent and her two deceased sisters as the first registered proprietors of the suit property from the year 1999. He never bothered to find out the mother title of the suit property since it was practically impossible that the suit property was never registered into someone’s names before that.
  10. It was apparent that the interested party never conducted a search at the relevant court registries to find out if there were pending cases touching on the suit property. The interested party ought to have figured out that there were protracted unsettled disputes touching of the suit property. In the premises, interested party was not a bona fide purchaser for value without notice of the defective grant and title for want of due diligence. The interested party ought to have done much better as far as the quest to find out the rightful owners of the suit property.
  11. Despite the interested party not having done due diligence, he had invested heavily in the suit property. The object of the court was upholding substantive justice. Substantive justice would be done by ensuring that the beneficiaries who were left out when the proceeds of the suit property were shared were given their share of the estate in question. The inherent powers of the Court granted under article 159 of the Constitution, section 76 of the Law of Succession Act and rule 73 of the Probate and Administration Rules were invoked.

Application partly allowed

Orders

  1. The Grant of Probate or Letters of Administration to Asha Ibrahim Hassan on April 22, 1997 and confirmed on May 15, 1998 was defective as the same was obtained fraudulently and by concealment from court of material facts, owing to the exclusion of Abdi Ibrahim Hassan and Fatuma Ibrahim Hassan from the list of beneficiaries. The said grant was revoked and annulled under the provisions of section 76(6) of the Law of Succession Act Cap 160 Laws of Kenya.
  2. A declaration that the beneficiaries namely; Abdi Ibrahim Hassan (represented by the applicant) and Fatuma Ibrahim Hassan were entitled to a share of their deceased father’s estate.
    1. A proper probate account to be filed within 6 months.A proper distribution of the estate of Ibrahim Hassan alias Sheikh Ibrahim Hassan who died on June 10, 1975 to be done.
    2. The status of the title to the suit property to be reserved.

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