Lucia Ngaira & 2 others v Jackson Ekim Omaido [2016] KECA 720 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that an oral promise about land is legally worthless - only a registered title counts.
What this practically means
#Executive summary
#Key legal issues
#Whether an alleged oral promise by a former owner to give the deceased 359.5 acres created any enforceable right in the land
It did not; the promise was not in writing as required by section 3(3) of the Law of Contract Act and the deceased never pursued it
Section 3(3) of the Law of Contract Act requires a contract for disposition of an interest in land to be in writing, signed by all parties and attested by a witness. The alleged 1984 oral promise by Durani was unsupported by documentary evidence, was never pursued during Durani's lifetime or after his death, and therefore created no enforceable right in the appellants.
Whether the respondent held the suit land in trust for the appellants and the deceased's dependants
No; trust is a question of fact to be proved by evidence and no sufficient evidence of a trust was led
The court endorsed the principle that a trust is never implied save in absolute necessity and only to give effect to the parties' intentions. The appellants led no evidence of a contractual, filial or other relationship from which a trust could be implied, so the trial judge's rejection of the trust claim was affirmed.
Whether prior burials of deceased workers on the suit land gave the appellants a right to bury the deceased there
No; such prior burials could not per se confer a right of burial or entitle the appellants to any portion of the land
The court held that the fact that the deceased had buried two children on the land, and that other former workers of Durani had been buried there, did not create a customary or proprietary right of burial against the registered proprietor, nor did it found a claim to the 359.5 acres.
Legal principles established
#- A contract for the disposition of an interest in land must be in writing, signed by all parties and attested; an oral promise cannot found a claim to land
- Registration of a person as proprietor of land vests absolute ownership that cannot be defeated except as provided under the Land Registration Act
- A trust will never be implied save in cases of absolute necessity and must be proved by clear evidence of intention
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
- 3.Permanent injunction restraining the appellants from burying the deceased's remains on the suit land (as granted by the High Court and upheld)
- On appeal from
- Environment & Land Court at Kitale (High Court)
- Kitale HCCC No. 9 of 2014
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (Environment & Land Court) under Article 164 of the Constitution and applicable appellate procedure
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lucia Ngaira & 2 others v Jackson Ekim Omaido [2016] KECA 720 (KLR)", Case Analysis (2016). Civil Appeal No. 21 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/720/eng@2016-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.