A woman who spent years battling for ownership of land in Makueni County has lost her case after the Environment and Land Court ruled that the people who sold her the property had no legal authority to transact on behalf of a deceased landowner.
And the court dismissed an appeal by Rosemary Moki, also known as Rosemary Wausi Moki, and overturned an earlier magistrate's court decision that had awarded her possession of land and ordered a refund of money paid in the transaction.
The judge found that the land sale agreements at the centre of the dispute were invalid because they were entered into by the deceased owner's sons before they had obtained letters of administration to manage their father's estate.
The case traces its roots to a transaction that began in 2007 when Ms Moki started purchasing one acre of land from Philip Kiema Munyao, who later died before the sale was completed.
Following his death, Ms Moki entered into another agreement with the deceased's sons in 2011 and paid them Sh200,000 towards the purchase of the land. She had earlier paid Sh20,000 to their late father. The agreed purchase price was Sh240,000.
She later sued six defendants in the Makindu Senior Principal Magistrate's Court seeking vacant possession of the land, an injunction against alleged trespassers, and delivery of an additional one and half acres which she claimed had been pledged to her under a business partnership agreement.
The trial court partly ruled in her favour, ordering the defendants to hand over one acre she had purchased and five acres she had leased. The magistrate also directed the defendants to refund the purchase price and lease payments if possession could not be granted.
Dissatisfied with aspects of the judgment, Ms Moki appealed, arguing that the court had failed to make clear findings on ownership of the land and had not enforced an agreement under which she was allegedly entitled to an additional one and half acres.
However, the Environment and Land Court found that the appeal could not succeed because the people who sold the land lacked the legal capacity to do so.
The judge held that the deceased's sons were not administrators of their father's estate and therefore had no authority to continue the transaction after his death.
“What the first to fourth respondent were doing was intermeddling with the estate of the deceased as they had no grant of letters of administration giving them authority to dispose of the property of the deceased,” the judge said.
High Court reprimanded a lower Makindu court for committing a grave legal error by erroneously awarding Moki both the vacant possession of the land and a full financial refund at the same time.
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The court noted that under succession law, family members cannot sell or otherwise deal with a deceased person's property unless they have first obtained legal authority from the court.
“Without grant of letters of administration, the Respondents had no capacity to sell the deceased's property,” the judge ruled.
The judge further found that because the transaction was void from the outset, the respondents could not be held liable in the manner sought by the appellant.
The court also rejected Ms Moki's claims against two other respondents whom she had accused of trespassing onto her land.
Evidence presented during the case showed that the land she had leased and later sought to purchase was located near a river, where she had previously cultivated vegetables.
The two respondents, however, had purchased separate plots near an assistant chief's office and had already constructed permanent structures there.
“There is no basis her case against the two would have succeeded,” the judge said.
Another major issue in the case involved an alleged partnership agreement under which Ms Moki claimed she had financed the purchase of a motor vehicle and motorcycle for the deceased's sons and had been promised one and half acres of land as security.
A land sale agreement enters an immediate legal vacuum if family members attempt to sell a deceased relative's property without legal permission.
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“There was absolutely no evidence of partnership tendered as alleged,” the judge said.
“Even if such a partnership existed, the property of the deceased would not have been made a subject of compensation without grant of letters of administration.”
According to the judgment, the lower court had simultaneously ordered transfer of the land to the appellant while also directing a refund of the purchase price and lease payments.
“The trial magistrate made a grave mistake by granting both the main claim and the alternative at the same time,” he said.
“If the Appellant would have proved her case, the trial magistrate ought to have only granted the main relief or the alternative relief but not both.”
The court further observed that the appellant had admitted selling part of the land she claimed to own to other investors, weakening her claim for relief.
“To grant any relief to the Appellant would amount to unjust enrichment,” the judge said.
In the end, the court set aside the entire judgment delivered by the Makindu court on January 6, 2022 and substituted it with an order dismissing Ms Moki's suit.
The ruling underscores a long-standing legal principle that transactions involving a deceased person's property are invalid unless conducted by duly appointed administrators of the estate, a requirement intended to protect beneficiaries and prevent unlawful dealings with inherited property.
