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ELCAllowedNot stated in the judgment (application dated 4/5/2015)· [2015] KEELC 352 (KLR)

Martha Wairimu Kigamba & 2 others v Lucy Wanjiru Kisemba & another [2015] KEELC 352 (KLR)

Environment and Land Court
25 June 2015
EOE. Obaga
914 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Land a deceased person formally gave away during their lifetime cannot be reclaimed through succession — registered recipients are entitled to keep it.

What this practically means

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Executive summary

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The three applicants, registered owners of subdivisions of L.R. No. Trans-Nzoia/Cherangani/135, sought an interlocutory injunction restraining the respondents - children of the deceased, Daniel Kigamba Kahato, from his first wife - from interfering with their properties. The deceased had subdivided and gifted the land during his lifetime: consent to subdivide into 8 portions was obtained, mutation forms prepared and subdivisions registered, with portions for his brother Joseph Njenga and sisters Martha Wairimu and Jane Wanjiru (or their nominees, the second and third applicants) to be registered in the names of Rahab Wamboi Njuguna and Douglas Kahato Gikomyo respectively. After the deceased died on 13/12/2014, the respondents chased the applicants from the lands, and the applicants processed their titles on 30/3/2015. The respondents opposed, contending the applicants were not dependants of the deceased, that the claims should have been pursued through succession, and that the supporting documents were forgeries executed while the deceased was bedridden and manipulated. Applying the settled Giwa-principles (prima facie case, irreparable harm, balance of convenience), the court found that the applicants had demonstrated a prima facie case with probability of success: minutes of family meetings, the land control board consent of 12/3/2014 and mutation forms showed the deceased had completed the gifting during his lifetime, and the consent in Kitale HCCC No. 112 of 2007 was taken into account. Titles obtained after death were not evidence of fraud, and the gifted portions could not form part of the estate. The application dated 4/5/2015 was allowed in terms of prayers 3 and 4.

Key legal issues

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01

Whether the applicants established a prima facie case with probability of success for an interlocutory injunction

Holding

The applicants demonstrated a prima facie case: the deceased completed the subdivision and gift of the land during his lifetime, the land control board consent was obtained and subdivisions registered, and the applicants merely processed titles after his demise.

Reasoning

The court reviewed minutes of family meetings from 2006, 12/10/2013 and 5/10/2014 showing the deceased allotted portions to his relatives, the land control board consent of 12/3/2014 and the mutation forms. It held that titles obtained after the deceased's death were not indicative of fraud, since the process of giving out the land had been completed during his lifetime.

p. 2
02

Whether the suit lands form part of the deceased's estate

Holding

The portions in respect of which the applicants obtained titles do not form part of the estate of the deceased because he had given them out as gifts inter vivos.

Reasoning

Because subdivision, consents and transfers had been completed and registered during the deceased's lifetime, the applicants' later processing of titles did not revive the land into the estate. The property was therefore unavailable for distribution in succession, defeating the respondents' argument that any claim should have been pursued through succession.

p. 2

Legal principles established

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  • Land given out by a deceased person as gifts inter vivos during his lifetime, with subdivision registered and titles processed, does not form part of the estate available for distribution in succession.

Court orders

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  1. 1.Application dated 4/5/2015 allowed in terms of prayer 3 and 4
  2. 2.Injunction restraining the respondents from interfering with the applicants' respective properties (prayers 3 and 4 of the application)
Jurisdiction invoked
Not stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Martha Wairimu Kigamba & 2 others v Lucy Wanjiru Kisemba & another [2015] KEELC 352 (KLR)", Case Analysis (2015). Not stated in the judgment (application dated 4/5/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/352/eng@2015-06-25

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