' This ruling is in respect to an Affidavit of Protest dated 11 th March 2024 and filed by Mr. Josphat Motanyo Gori , the County Chief Officer Nyamira, in the Department of Lands, Housing and Physical Planning and Urban Development on behalf of the Interested Party, Government of Nyamira County.
The deponent averred that in its Ruling dated 18 th April 2016 this Court ordered that the Interested Party was at liberty to register its interest in the suit Land Parcel No. EAST KITUTU/MWAMANGERA SCHEME/545 as a purchaser in any fresh Confirmation of Grant proceedings filed by the beneficiaries of the Estate of the deceased. He averred that the Petitioner entered into a sale agreement for the said parcel for a consideration of Kshs. 4 Million on 16 th September 2013, in his capacity as the registered owner of the said parcel, at the time, having received the full purchase price.
He further averred that it was an act of glaring fraud that the Petitioner would enter into a land sale agreement and receive public funds for the consideration and then proceed to confirm the Grant by advertently leaving out the Interested Party’s interest. He urged the court to compel the Petitioner to account for and acknowledge such interest in the mode of distribution.
The Petitioner did not file any response to the affidavit of protest nor participate in the proceedings despite having been duly served with the Affidavit of Protest as shown in the Affidavit of Service dated 26 th June 2025.
The protest was canvassed by way of written submissions which I have considered.
Issue(s) for Determination
The main issue for my determination is whether the Interested Party’s protest is merited. In determining the main issue, the Court must determine whether the Interested Party was a bona fide purchaser for value and therefore deserving of the orders sought.
Analysis and Determination
For the court’s determination is an Application for Confirmation of Grant filed by the Objector/Administrator herein and an Affidavit of the proposed Mode of Distribution. The Interested Party’s case is that it entered into a sale agreement with the Petitioner on 16 th September 2013 and was therefore a bona fide purchaser for value.
The Administrator/Objector stated that under the Law of Succession Act a purchaser of an interest in the Estate of a deceased, from one of the beneficiaries, does not fall under the category of dependants as stipulated by Section 29 of the Act . According to the objector, the purchaser is not therefore entitled to share in any part of the Estate of a deceased person. He urged the Court to dismiss the Affidavit of Protest and to find that the Interested Party’s claim was against the Petitioner alone and that she should pursue her interest in the said Estate in another forum away from the present case.
The Interested Party, on the other hand, submitted that there was an express sale agreement in respect to the whole parcel of land which comprised the entire Estate of the deceased, a fact that was not disputed and ought to be binding on all the family members. He urged the Court to find that the Interested Party was an innocent purchaser for value. Reference was made to the Supreme Court’s decision in Sehmi & Another vs. Tarabana Company Limited & 5 Others (Petition No. E033 of 2023) (2025) eKLR KESC 21 KLR where the court outlined the elements to be proved by a party who claims to be a bona fide purchaser for value as innocence, purchase for value and a legal estate.
It was submitted that any inequities or bad faith on the vendor/Petitioner at the time of the sale transaction including those that led to the earlier revocation of Grant, which the Interested Party had no notice of, could not operate to defeat their acquired interest.
The Court of Appeal described a bona fide purchaser for value in the case of Samuel Kamere vs. Lands Registrar, [Kajiado Civil Appeal No. 28 of 2005 [2015] eKLR] as follows: -
“…in order to be considered a bona fide purchaser for value, they must prove; that they acquired a VALID and LEGAL title, secondly, they carried out the necessary due diligence to determine the lawful owner from whom they acquired a legitimate title and thirdly that they paid valuable consideration for the purchase of the suit property…”
In re Estate of Geoffrey Robin Mkimbo (Deceased) (Succession Cause 242 of 2009) [2023] KEHC 1236 (KLR) Onyiego J. described a bona fide purchaser for value as follows: -
“In the court’s view a Bona Fide Purchaser is one who purchases 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…”
In the case of Lawrence Mukiri vs. Attorney General & 4 others [2013] eKLR , the court held that a person intending to successfully rely on the bona fide purchaser doctrine, must prove the following: -
“a. He holds a certificate of title.
b. He purchased the property in good faith;
c. He had no knowledge of the fraud;
d. The vendors had apparent valid title;
e. He purchased without notice of any fraud;
f. He was not party to any fraud.”
When faced with a similar case in David Peterson Kiengo & 2 Others vs. Kariuki Thuo [2012] KEHC 5881 (KLR) , Prof. Ngugi J. (as he then was) held thus: -
“13. Where, then, does this leave us? There is no elegant way to resolve this issue. There is only a pragmatic way of doing so. It is in keeping with the objectives of the Registered Lands Act, and, indeed, the entire system of registration of land in Kenya. The Registered Lands Act is based on the Torrens’ System. Under this system, indefeasibility of title is the basis for land registration. The State maintains a central register of land title holdings which is deemed to accurately reflect the current facts about title. The whole idea is to make it unnecessary for a party seeking to acquire interests in land to go beyond the register to establish ownership. The person whose name is recorded on the register holds guaranteed title to the property. Since the State guarantees the accuracy of the register, it makes it unnecessary for a person to investigate the history of past dealing with the land in question before acquiring an interest. That this is the essence of the Torrens System was stated as early back as 1891 in the case of Gibbs v. Messer (1891) AC 254: -
The main object of the Act, and the legislative scheme for the attainment of that object, appear to be equally plain. The object is to save persons dealing with registered proprietors from the trouble and expense of going behind the register, in order to investigate the history of their author’s title, and to satisfy themselves of its validity. That end is accomplished by providing that everyone who purchases, in bona fide and for value, from a registered proprietor, and enters his deed or transfer of mortgage on the register, shall thereby acquire an indefeasible right, notwithstanding the infirmity of his author''s title.” (Emphasis added)
Applying the above principles to the facts of this case, I find that the Interested Party herein had no way of knowing that the process that led to the issuance of Grant and the subsequent confirmation that led to Petitioner’s registration was marred with concealment of facts or illegalities. They made reference to the sale agreement dated 16 th September 2013 (‘JMG-002’) together with a copy of an Official Certificate of Search dated 6 th August 2013 (‘JMG-003’) and also attached a Ruling of this Court delivered on 18 th April 2016 (‘JMG-001’ ). I therefore find that the Interested Party, having conducted due diligence at the time of the purchase, was a bona fide purchaser for value as described in the above cited authorities and that he consequently acquired an indefeasible interest in the said property.
It is trite that a party cannot dispose or transact with the property of a deceased person before the completion of succession proceedings. Section 45 of the Act provides that: -
45. No intermeddling with property of deceased person
Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.
Any person who contravenes the provisions of this section shall-
be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and
In the present case, the evidence reveals that the Petitioner sold the land in question to the Interested Party after the conclusion of the initial succession proceedings right before the Grant was revoked by this Court. This was therefore not a case of intermeddling with the estate of a deceased person by the said Petitioner.
The question that begs an answer is whether a bona fide purchaser for value of property Land Parcel No. EAST KITUTU/MWAMANGERA SCHEME/545 has any recourse before this Court, in light of the revocation of the said Grant.
Section 93 of the Law of Succession Act provides for the validity of transfers not affected by revocation of Grants of representation and protects a bona fide purchaser for value from any party who has obtained Grant of Representation where the said Grant is revoked as in the present case. I note that in its Ruling dated 18 th April 2016, this court, differently constituted, revoked the Grant originally issued to the Petitioner on 4 th December 2012 and confirmed on 16 th December 2012.
Considering the the dates of the Ruling and confirmation of the Grant, alongside the time when the sale was effected in September 2013, it is evident that by the time of the said sale, the Petitioner had already obtained title to the deceased Estate on the strength of the confirmed Grant, and registered the property in her name thereby making her the sole and legal proprietor of the suit parcel, capable of lawfully disposing the same to third parties, in this case, the Interested Party.
I therefore find that Section 93 of the Law of Succession comes into play. The section provides as follows: -
93. Validity of transfer not affected by revocation of representation
(1) All transfers of any interest in immovable or movable property made to a purchaser either before or after the commencement of this Act, by a person to whom representation has been granted shall be valid, notwithstanding any subsequent revocation or variation of the grant either before or after the commencement of this Act.
(2) _______
In Purity Ndirangu vs. Anthony Karanja & 2 others [2019] eKLR the court stated: -
“Section 93 of the Law of Succession Act protects a bonafide purchaser of any property from a person who has obtained a grant of representation even if that grant is subsequently revoked or varied.”
Based on the foregoing, I find that the Interested Party has a valid claim over the Estate of the deceased, having legally obtained title to the suit land from a seller who had effected the confirmation of the Grant at the time. The consequence of the above finding is that the suit land parcel, which constituted the entire Estate of the deceased, ought to be released to the Interested Party on the strength of Section 93 above. I however note that the import of the above decision would have the effect of disinheriting the other rightful beneficiaries as a result of events that they had no control over as innocent parties in this matter.
Taking the above eventuality into account and to ensure fairness in the administration of justice I will fall back on the provisions of Rule 73 of the Probate and Administration Rules which provides that: -
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.
Consequently, in the interest of justice and having found that the Interested party’s claim against the Petitioner has the effect of creating an injustice to other innocent beneficiaries of the deceased, I must balance the parties’ competing interests. In Re Estate of Geoffrey Robin Mkimbo (Deceased) (supra) the court held thus: -
“52. The interested party’s claim is that he is a bonafide purchaser for value without notice of any defect in title or in the obtaining of the grant which is the subject for revocation as he bought plot No 209/8134 on October 23, 2020 from the respondent pursuant to the grant issued on October 31, 2013, confirmed on June 20, 2016 and rectified on March 3, 2020.The same was transferred to him on March 27, 2021. That he was not aware of any dispute in respect of the estate. That he has great interest in the property in question. In his submission, he argued that he is protected under section 93 (1) of the Law of Succession Act . This fact has not been disputed.
53.However, although section 93 is meant to protect an innocent or bonafide purchaser for value, the same cannot be invoked in situations where an administrator intentionally disinherits other beneficiaries by failing to disclose their identity to the court hence proceeds to sell part of the estate. An illegal transaction cannot be sanitized by invoking section 93. Once an act is nullity the same is definitely void ab nitio. See Mcfoy v United African Company Ltd 1961 3ALL ER 1169. In my view, the estate of Nicholas Mwashimba mkimbo is entitled to half share out of the entire estate of the deceased Plot No.209 Race course included and thereafter the applicants to equally share their father’s share or entitlement. I must however make it clear that the late Victor did not leave any heirs hence no estate to claim his share. Accordingly, the estate is only available for distribution between the respondent and the estate of Nicholas.
54. To be fair to the interested party, I will direct that the respondent compensates the estate of Nicholas Mwashimba to the tune of the value of half share of the race course plot No 209 which half share the applicants shall share equally in default, the sale transaction be nullified and the property reverts back to the deceased’s name for distribution between the rightful beneficiaries.
Consequently, I direct that the Petitioner’s entire share from the Estate shall be distributed to the Interested Party herein who will also be entitled to seek monetary compensation, at the current market price, for the remaining portion of the acreage purchased in the sale agreement dated 16 th September 2013 from the Petitioner.
Noting the nature of this matter, I make no orders as to costs.
Orders accordingly.
'
The deponent averred that in its Ruling dated 18 th April 2016 this Court ordered that the Interested Party was at liberty to register its interest in the suit Land Parcel No. EAST KITUTU/MWAMANGERA SCHEME/545 as a purchaser in any fresh Confirmation of Grant proceedings filed by the beneficiaries of the Estate of the deceased. He averred that the Petitioner entered into a sale agreement for the said parcel for a consideration of Kshs. 4 Million on 16 th September 2013, in his capacity as the registered owner of the said parcel, at the time, having received the full purchase price.
He further averred that it was an act of glaring fraud that the Petitioner would enter into a land sale agreement and receive public funds for the consideration and then proceed to confirm the Grant by advertently leaving out the Interested Party’s interest. He urged the court to compel the Petitioner to account for and acknowledge such interest in the mode of distribution.
The Petitioner did not file any response to the affidavit of protest nor participate in the proceedings despite having been duly served with the Affidavit of Protest as shown in the Affidavit of Service dated 26 th June 2025.
The protest was canvassed by way of written submissions which I have considered.
Issue(s) for Determination
The main issue for my determination is whether the Interested Party’s protest is merited. In determining the main issue, the Court must determine whether the Interested Party was a bona fide purchaser for value and therefore deserving of the orders sought.
Analysis and Determination
For the court’s determination is an Application for Confirmation of Grant filed by the Objector/Administrator herein and an Affidavit of the proposed Mode of Distribution. The Interested Party’s case is that it entered into a sale agreement with the Petitioner on 16 th September 2013 and was therefore a bona fide purchaser for value.
The Administrator/Objector stated that under the Law of Succession Act a purchaser of an interest in the Estate of a deceased, from one of the beneficiaries, does not fall under the category of dependants as stipulated by Section 29 of the Act . According to the objector, the purchaser is not therefore entitled to share in any part of the Estate of a deceased person. He urged the Court to dismiss the Affidavit of Protest and to find that the Interested Party’s claim was against the Petitioner alone and that she should pursue her interest in the said Estate in another forum away from the present case.
The Interested Party, on the other hand, submitted that there was an express sale agreement in respect to the whole parcel of land which comprised the entire Estate of the deceased, a fact that was not disputed and ought to be binding on all the family members. He urged the Court to find that the Interested Party was an innocent purchaser for value. Reference was made to the Supreme Court’s decision in Sehmi & Another vs. Tarabana Company Limited & 5 Others (Petition No. E033 of 2023) (2025) eKLR KESC 21 KLR where the court outlined the elements to be proved by a party who claims to be a bona fide purchaser for value as innocence, purchase for value and a legal estate.
It was submitted that any inequities or bad faith on the vendor/Petitioner at the time of the sale transaction including those that led to the earlier revocation of Grant, which the Interested Party had no notice of, could not operate to defeat their acquired interest.
The Court of Appeal described a bona fide purchaser for value in the case of Samuel Kamere vs. Lands Registrar, [Kajiado Civil Appeal No. 28 of 2005 [2015] eKLR] as follows: -
“…in order to be considered a bona fide purchaser for value, they must prove; that they acquired a VALID and LEGAL title, secondly, they carried out the necessary due diligence to determine the lawful owner from whom they acquired a legitimate title and thirdly that they paid valuable consideration for the purchase of the suit property…”
In re Estate of Geoffrey Robin Mkimbo (Deceased) (Succession Cause 242 of 2009) [2023] KEHC 1236 (KLR) Onyiego J. described a bona fide purchaser for value as follows: -
“In the court’s view a Bona Fide Purchaser is one who purchases 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…”
In the case of Lawrence Mukiri vs. Attorney General & 4 others [2013] eKLR , the court held that a person intending to successfully rely on the bona fide purchaser doctrine, must prove the following: -
“a. He holds a certificate of title.
b. He purchased the property in good faith;
c. He had no knowledge of the fraud;
d. The vendors had apparent valid title;
e. He purchased without notice of any fraud;
f. He was not party to any fraud.”
When faced with a similar case in David Peterson Kiengo & 2 Others vs. Kariuki Thuo [2012] KEHC 5881 (KLR) , Prof. Ngugi J. (as he then was) held thus: -
“13. Where, then, does this leave us? There is no elegant way to resolve this issue. There is only a pragmatic way of doing so. It is in keeping with the objectives of the Registered Lands Act, and, indeed, the entire system of registration of land in Kenya. The Registered Lands Act is based on the Torrens’ System. Under this system, indefeasibility of title is the basis for land registration. The State maintains a central register of land title holdings which is deemed to accurately reflect the current facts about title. The whole idea is to make it unnecessary for a party seeking to acquire interests in land to go beyond the register to establish ownership. The person whose name is recorded on the register holds guaranteed title to the property. Since the State guarantees the accuracy of the register, it makes it unnecessary for a person to investigate the history of past dealing with the land in question before acquiring an interest. That this is the essence of the Torrens System was stated as early back as 1891 in the case of Gibbs v. Messer (1891) AC 254: -
The main object of the Act, and the legislative scheme for the attainment of that object, appear to be equally plain. The object is to save persons dealing with registered proprietors from the trouble and expense of going behind the register, in order to investigate the history of their author’s title, and to satisfy themselves of its validity. That end is accomplished by providing that everyone who purchases, in bona fide and for value, from a registered proprietor, and enters his deed or transfer of mortgage on the register, shall thereby acquire an indefeasible right, notwithstanding the infirmity of his author''s title.” (Emphasis added)
Applying the above principles to the facts of this case, I find that the Interested Party herein had no way of knowing that the process that led to the issuance of Grant and the subsequent confirmation that led to Petitioner’s registration was marred with concealment of facts or illegalities. They made reference to the sale agreement dated 16 th September 2013 (‘JMG-002’) together with a copy of an Official Certificate of Search dated 6 th August 2013 (‘JMG-003’) and also attached a Ruling of this Court delivered on 18 th April 2016 (‘JMG-001’ ). I therefore find that the Interested Party, having conducted due diligence at the time of the purchase, was a bona fide purchaser for value as described in the above cited authorities and that he consequently acquired an indefeasible interest in the said property.
It is trite that a party cannot dispose or transact with the property of a deceased person before the completion of succession proceedings. Section 45 of the Act provides that: -
45. No intermeddling with property of deceased person
Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.
Any person who contravenes the provisions of this section shall-
be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and
In the present case, the evidence reveals that the Petitioner sold the land in question to the Interested Party after the conclusion of the initial succession proceedings right before the Grant was revoked by this Court. This was therefore not a case of intermeddling with the estate of a deceased person by the said Petitioner.
The question that begs an answer is whether a bona fide purchaser for value of property Land Parcel No. EAST KITUTU/MWAMANGERA SCHEME/545 has any recourse before this Court, in light of the revocation of the said Grant.
Section 93 of the Law of Succession Act provides for the validity of transfers not affected by revocation of Grants of representation and protects a bona fide purchaser for value from any party who has obtained Grant of Representation where the said Grant is revoked as in the present case. I note that in its Ruling dated 18 th April 2016, this court, differently constituted, revoked the Grant originally issued to the Petitioner on 4 th December 2012 and confirmed on 16 th December 2012.
Considering the the dates of the Ruling and confirmation of the Grant, alongside the time when the sale was effected in September 2013, it is evident that by the time of the said sale, the Petitioner had already obtained title to the deceased Estate on the strength of the confirmed Grant, and registered the property in her name thereby making her the sole and legal proprietor of the suit parcel, capable of lawfully disposing the same to third parties, in this case, the Interested Party.
I therefore find that Section 93 of the Law of Succession comes into play. The section provides as follows: -
93. Validity of transfer not affected by revocation of representation
(1) All transfers of any interest in immovable or movable property made to a purchaser either before or after the commencement of this Act, by a person to whom representation has been granted shall be valid, notwithstanding any subsequent revocation or variation of the grant either before or after the commencement of this Act.
(2) _______
In Purity Ndirangu vs. Anthony Karanja & 2 others [2019] eKLR the court stated: -
“Section 93 of the Law of Succession Act protects a bonafide purchaser of any property from a person who has obtained a grant of representation even if that grant is subsequently revoked or varied.”
Based on the foregoing, I find that the Interested Party has a valid claim over the Estate of the deceased, having legally obtained title to the suit land from a seller who had effected the confirmation of the Grant at the time. The consequence of the above finding is that the suit land parcel, which constituted the entire Estate of the deceased, ought to be released to the Interested Party on the strength of Section 93 above. I however note that the import of the above decision would have the effect of disinheriting the other rightful beneficiaries as a result of events that they had no control over as innocent parties in this matter.
Taking the above eventuality into account and to ensure fairness in the administration of justice I will fall back on the provisions of Rule 73 of the Probate and Administration Rules which provides that: -
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.
Consequently, in the interest of justice and having found that the Interested party’s claim against the Petitioner has the effect of creating an injustice to other innocent beneficiaries of the deceased, I must balance the parties’ competing interests. In Re Estate of Geoffrey Robin Mkimbo (Deceased) (supra) the court held thus: -
“52. The interested party’s claim is that he is a bonafide purchaser for value without notice of any defect in title or in the obtaining of the grant which is the subject for revocation as he bought plot No 209/8134 on October 23, 2020 from the respondent pursuant to the grant issued on October 31, 2013, confirmed on June 20, 2016 and rectified on March 3, 2020.The same was transferred to him on March 27, 2021. That he was not aware of any dispute in respect of the estate. That he has great interest in the property in question. In his submission, he argued that he is protected under section 93 (1) of the Law of Succession Act . This fact has not been disputed.
53.However, although section 93 is meant to protect an innocent or bonafide purchaser for value, the same cannot be invoked in situations where an administrator intentionally disinherits other beneficiaries by failing to disclose their identity to the court hence proceeds to sell part of the estate. An illegal transaction cannot be sanitized by invoking section 93. Once an act is nullity the same is definitely void ab nitio. See Mcfoy v United African Company Ltd 1961 3ALL ER 1169. In my view, the estate of Nicholas Mwashimba mkimbo is entitled to half share out of the entire estate of the deceased Plot No.209 Race course included and thereafter the applicants to equally share their father’s share or entitlement. I must however make it clear that the late Victor did not leave any heirs hence no estate to claim his share. Accordingly, the estate is only available for distribution between the respondent and the estate of Nicholas.
54. To be fair to the interested party, I will direct that the respondent compensates the estate of Nicholas Mwashimba to the tune of the value of half share of the race course plot No 209 which half share the applicants shall share equally in default, the sale transaction be nullified and the property reverts back to the deceased’s name for distribution between the rightful beneficiaries.
Consequently, I direct that the Petitioner’s entire share from the Estate shall be distributed to the Interested Party herein who will also be entitled to seek monetary compensation, at the current market price, for the remaining portion of the acreage purchased in the sale agreement dated 16 th September 2013 from the Petitioner.
Noting the nature of this matter, I make no orders as to costs.
Orders accordingly.
'