Court: Without succession, you can't sell assets of the deceased

Any dealings on a deceased person's estate before confirmation of a grant is null and void, a court in Nakuru has ruled.

Justice Anthony Ombwayo of the Environment and Lands Court in Nakuru, in a judgment on a suit by Timothy Kimutai, said before a grant is issued and confirmed, no part of the estate may be dealt with.

Kimutai moved to court in October 2016 and filed a suit against three brothers – Stanley Kabuu, Wilson Kabuu and James Kabuu. He claimed he entered into a sale transaction with the three for the purchase of land at Sh1,045,000.

The three, he said, had made it known to him that the suit property was part of their deceased father William Kiarie Kabuu’s estate.

Kimutai said he was misled to believe that the three had the legal capacity to sell and had no issue with the situation about the said property and was agreeable to facilitate the completion of the succession matter to enable the three to transfer the property in his favour.

He said he had started by paying the asking price in the hope of a successful transaction.

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He said he paid Sh1,100,000 through the parties’ mutual advocate practising under Chesire & Co. Advocates.

Kimutai said he proceeded to occupy the land as his residential and matrimonial home, which move was not disputed by the three.

He received a letter dated November 21, 1995, informing him that the three would transfer the property to him in six months when the grant issued to them had been confirmed.

He revealed that after close to five years, not much progress had been made and he approached the firm of Ms Violet Barasa & Co. Advocates in pursuit of finalising the transfer of the suit property in his name as well as that of his deceased wife Nancy Ng’eny, since the parties mutual advocate Mr Chesire had become elusive in the matter.

The firm of Violet Barasa & Co. Advocates, he said, wrote a letter to the three on August 30, 1999, requesting them to finalise the transfer of the suit property in his favour. The said letter didn’t elicit any response.

In November 2001, Kimutai headed to the Complainants Commission and launched a complaint against the firm of Chesire & Co. Advocates for the claimed balance of the purchase price, which was hindering the transfer of the suit property to him.

The complaint against Mr Chesire was heard on April 11, 2003, before the Disciplinary Committee being Cause Number 129 of 2002.

Later on May 16, 2003, a judgment was delivered against the advocate, whose full name was Chepyegon Christopher Chesire, who was found guilty of misappropriating funds that had been due to the three.

Kimutai wanted the court to order the three to transfer and register the land in his favour. He also wanted the court order that he be compensated.

The three, in their defence, agreed that there was a sale pact between Kimutai and them. They denied allowing Kimutai to take possession of the land before completing the payment.

They said that the sale became void six months from the date of the agreement.

The court in the judgment, noted that the parties agreed on January 14, 1995, the three brothers could not sell the suit property as it was not registered in their names but that of their deceased father.

The judge said the three alleged that they were legal representatives of the estate of William Kiarie even though they had not obtained letters of administration. This, according to the court, was fraud.

The judge noted that the decision by the three brothers was contrary to the provisions of Section 45 of the Law of Succession Act.

He referred to the case of John Gakunga Njoroge, where the court held that a person can only deal with the estate of a deceased person under a Grant of Representation made to him under the Law of Succession Act.

Justice Ombwayo noted that the jurisdiction of the court to protect the estate of a deceased person is set out in Section 45 of the Law of Succession Act.

The judge noted that the money paid by Kimutai could only be recovered from the three brothers as a claim for a refund and compensation for the improvement made on the land.

The judge having found that the agreement was null and void, and the claim being time-barred, Kimutai is not entitled to compensation and dismissed the suit.