Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissednull (plea dated 2nd April 2015; notice of motion dated 2nd July 2015; case number not printed in the judgment)· [2015] KEELC 170 (KLR)

Andrew Wairagu Kiboi v Annah Wanjiku Kiboi [2015] KEELC 170 (KLR)

Environment and Land Court
5 October 2015
LWL N Waithaka
3,026 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

A Kenyan widow cannot sell family land held under a life interest without the consent of her adult children or the court.

What this practically means

#

Executive summary

#
The plaintiff, a son of the defendant, sued by plaint dated 2nd April 2015 claiming that his mother holds land parcel Nyeri/Mweiga/1686 – a subdivision of Nyeri/Mweiga/326, registered in the name of his deceased father Joseph Kiboi Theuri – in trust for himself and his siblings. He sought termination of the alleged trust, 15.52 acres, and a permanent injunction restraining sale of the land and interference with his occupation of the farmhouse. The defendant, who obtained letters of administration in Nyeri High Court Succession Cause No.398 of 2003, denied any trust, asserting she had given each of her five children 13 acres and retained the suit land, which she charged to Equity Bank to secure a Kshs.13 million facility. She moved to strike out the suit as frivolous and an abuse of process and alternatively sought security for costs of Kshs.20 million. The court applied Order 2 Rule 15 of the Civil Procedure Rules and Sections 35 and 37 of the Law of Succession Act, holding that a widow holding a life interest holds the property in trust for her children and may only sell immovable property subject to that interest with the consent of all children of full age or of the court. Since the applicant had tried to dispose of the property without such consent, the plaintiff's claim was bona fide. The striking-out application was dismissed with no orders as to costs, and the security for costs was refused. The court directed the plaintiff and his siblings to show cause within 14 days why the disposal of a portion of the land to settle the bank debt should not be permitted.

Key legal issues

#
01

Whether the suit should be struck out for want of a reasonable cause of action

Holding

The suit is bona fide; a son of a deceased proprietor is entitled to be consulted before immovable property held by his mother as administrator under a life interest is disposed of.

Reasoning

It was not in dispute that the suit property formed part of the estate of the defendant's deceased husband. Under Section 35 of the Law of Succession Act the widow holds a life interest, and under Section 37 she may sell immovable property subject to that interest only with the consent of all children of full age or of the court. The applicant tried to dispose of the suit property in violation of these provisions without such consent. The claim therefore discloses a reasonable cause of action.

p. 5
02

Whether security for costs of Kshs.20,000,000 should issue

Holding

Refused; the applicant herself had disregarded the law in attempting the sale.

Reasoning

Having found that the applicant proceeded in blatant disregard of the law in a bid to sell a portion of the suit property to meet her obligations, the court was not persuaded that she made a case for security for costs. However, in recognition of her difficulty in meeting the bank obligation, the court directed the plaintiff and his siblings to show cause within 14 days why the court should not allow the disposal under Section 3A of the Civil Procedure Act and/or Section 47 of the Law of Succession Act.

p. 6

Legal principles established

#
  • During the subsistence of her life interest under Section 35 of the Law of Succession Act, a surviving spouse holds the net intestate estate in trust for herself and her children, and may only sell immovable property subject to that interest with the consent of all children of full age or of the court
  • Under Order 2 Rule 15(2), no evidence is required to determine whether a pleading discloses a reasonable cause of action

Court orders

#
  1. 1.The defendant's notice of motion dated 2nd July 2015 seeking to strike out the plaintiff's suit is dismissed
  2. 2.No orders as to costs; this being a family dispute, parties to bear their own costs of the application
  3. 3.Direction that the plaintiff and his siblings show cause within 14 days why the court should not, under Section 3A of the Civil Procedure Act and/or Section 47 of the Law of Succession Act, allow the applicant to dispose of the portion of the suit property she intends to sell to meet her financial obligations

Authorities

#

Legislation

  • Civil Procedure RulesOrder 2 Rule 15
  • Law of Succession Act, Cap 160 Laws of KenyaSections 35, 37, 47
  • Civil Procedure ActSection 3A

Cases cited (1)

  • Susan Mumbi Waititu v. Mukuru Ndata & 4 others
    Civil Case No. 19 of 2007
Jurisdiction invoked
Order 2 Rule 15 of the Civil Procedure Rules (striking out pleadings); Section 3A of the Civil Procedure Act; Section 47 of the Law of Succession Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Andrew Wairagu Kiboi v Annah Wanjiku Kiboi [2015] KEELC 170 (KLR)", Case Analysis (2015). null (plea dated 2nd April 2015; notice of motion dated 2nd July 2015; case number not printed in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/170/eng@2015-10-05

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