N K G v M N K & 9 others [2013] KEELC 101 (KLR)

Environment and Land Court

31 July 2013

OAO. A. Angote

1,364 words in judgment

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The bottom line

A Kenyan court confirmed that a registered landowner can sell his land over family objections, where the family offers no legally justified reason to block the sale.

What this practically means

Executive summary

The Plaintiff, a farmer settled in Mpeketoni, Lamu, filed an Originating Summons on 13th January 2010 against his wife (1st Defendant) and nine children, seeking to be allowed to sell land parcel Lamu/Lake Kenyatta/[Particulars withheld], registered in his name, to raise finances to relocate to a cold climate on medical advice. He deponed that he had acquired three parcels, had registered one in his wife's name, and had distributed the other two to his daughters and sons; that he suffered a benign right renal cyst which had grown from 2.8 cm to 4.7 cm, aggravated by Lamu's warm climate, and that his doctor strongly advised relocation to a cold area with suitable medical services. He alleged the 1st Defendant had colluded with the other Defendants to prevent the sale. The Defendants entered appearance through Nyakoe Macharia & Co. Advocates but filed no Replying Affidavit and adduced no evidence. The court proceeded on affidavit and viva voce evidence as directed by Omondi J; the Plaintiff testified and produced titles, and a radiographer corroborated the medical condition. O. A. Angote J found the Plaintiff's evidence and documents uncontroverted, held that the Defendants' opposition lacked justification, and allowed the Originating Summons. The Plaintiff was permitted to sell the suit parcel, the Land Control Board was directed to grant transfer consent notwithstanding the Defendants' objection, and each party was ordered to bear their own costs.

Key legal issues

Whether the Plaintiff may sell the suit parcel registered in his name to finance relocation on medical grounds

Holding

The court allowed the sale, finding the Plaintiff is the registered proprietor, his medical evidence was uncontroverted, and the Defendants raised no legally justifiable opposition.

Reasoning

The Plaintiff deponed and testified that he suffered a growing benign renal cyst aggravated by heat and that his doctor advised relocation to a cold climate. A radiographer corroborated this. The Defendants entered appearance but filed no Replying Affidavit, leaving the evidence uncontroverted. The court held that a registered proprietor may dispose of his land and that family members cannot obstruct the sale where the owner requires finances for medical relocation.

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Whether the Defendants' opposition to the sale had any legal basis

Holding

The court found the Defendants' opposition unjustified, characterising their conduct as indifference to the Plaintiff's welfare despite having benefited from his distribution of the other parcels.

Reasoning

The Defendants filed no Replying Affidavit and adduced no evidence. The court observed that the Plaintiff had already distributed the other two parcels to his daughters and sons, and that the Defendants' obstruction of the sale of the remaining parcel lacked reasonable cause or justification, particularly given his deteriorating health and need for medical facilities available in a cold climate.

p. 3

Legal principles established

An uncontroverted affidavit evidence stands unchallenged and may found judgment
A registered proprietor is entitled to dispose of his land, and the court may direct the Land Control Board to grant consent notwithstanding family objections

Court orders

1.The Plaintiff is allowed by the court to sell land parcel number Lamu/Kenyatta/[Particulars withheld] in order to obtain finances to enable him relocate from Mpeketoni, Lamu to a cold place
2.The Land Control Board of the area in which the suit parcel is situated to grant the Plaintiff the consent to transfer the parcel notwithstanding the objection by the defendants to the said sale
3.Each party to bear his or her own costs

Jurisdiction invoked: Originating jurisdiction of the High Court (land dispute) pursuant to the Originating Summons procedure; judgment delivered by the Environment and Land Court at Malindi

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "N K G v M N K & 9 others [2013] KEELC 101 (KLR)", Case Analysis (2013). Civil Case No. 3 of 2010 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/101/eng@2013-07-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.