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ELCPartially AllowedE.L.C. Case No. 51 of 2017· [2018] KEELC 2446 (KLR)

Raurenjia Nguru Njiri & another v Jane Terry Wanjiru Mbogo [2018] KEELC 2446 (KLR)

Environment and Land Court of Kenya
5 July 2018
2,689 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court confirmed that registered land owners can transfer their property freely, with no legal duty to gift land to adult children.

What this practically means

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Executive summary

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The 1st Plaintiff, widow of Riro Mwendano, sued to have a restriction removed from land parcel Ngandori/Ngovio/5424 and to restrain the Defendant, her daughter-in-law, from interfering with the property, having sold it to the 2nd Plaintiff. The Defendant claimed the property had been gifted to her late second husband Muchira, the 1st Plaintiff's son, to whom she said she was married after the death of her first husband Nyaga, who had been gifted parcel No. 5425. The court framed four issues: ownership, fraud, entitlement to reliefs and costs. It declined to determine whether the Defendant was married to Muchira, holding that this was not a succession court and that the transfer from Mwendano to the 1st Plaintiff was an inter vivos transaction by a proprietor entitled to deal with his land as he pleased, with no legal obligation on a parent to gift land to adult children (citing Esiroyo v Esiroyo). The green cards showed the title issued to Mwendano in about 2015 and then transferred to the 1st Plaintiff, with no registration in Muchira's name; the intended transfer to Muchira never materialized. No fraud was proved against the 1st Plaintiff. Relying on section 24(a) of the Land Registration Act, the court held the Plaintiffs had proved their case on a balance of probabilities and entered judgment as prayed. However, because the parties are one family and the 2nd Plaintiff need not have joined, each party was ordered to bear its own costs. The Defendant was permitted to harvest food crops planted in the current season, excluding cash crops.

Key legal issues

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01

Ownership of the suit property as between the 1st Plaintiff and the Defendant

Holding

The 1st Plaintiff is the rightful owner, having acquired the property from her husband Mwendano, the registered proprietor, by an inter vivos transfer.

Reasoning

The property derived from Mwendano's parcel No. 606. Though he showed his sons portions on the ground, the sub-division and issuance of titles was not completed before Muchira's death. The title was issued to Mwendano, who transferred it to the 1st Plaintiff. There was no evidence of registration in Muchira's name at any time, and a proprietor is under no legal obligation to gift land to adult children. The intended transfer to Muchira never materialized.

p. 3
02

Whether the 1st Plaintiff fraudulently acquired the suit property

Holding

No fraud was proved.

Reasoning

The 1st Plaintiff acquired the property from her husband who was still alive. No evidence of fraud was tendered, and Mwendano, the person best placed to complain, never alleged that his wife had grabbed the property or subverted his wishes.

p. 3
03

Whether the existence of the alleged marriage between the Defendant and the late Muchira needed determination

Holding

It was unnecessary for the court to determine the existence or otherwise of the marriage since this was not a succession cause and the property was transferred inter vivos.

Reasoning

The court clarified it is not a succession court and no succession proceedings were before it. Mwendano was still alive at the hearing. The transfer to the 1st Plaintiff was an inter vivos transaction by a living proprietor entitled to deal with his land as he pleased, so the question of the Defendant's marital rights did not arise for determination.

p. 3
04

Whether the Plaintiffs were entitled to the reliefs sought

Holding

Yes, the Plaintiffs proved their case on a balance of probabilities and were entitled to the reliefs in the plaint.

Reasoning

The 1st Plaintiff being the rightful owner without fraud, section 24(a) of the Land Registration Act vested absolute ownership in her. She was therefore entitled to have the restriction removed and to the injunction restraining the Defendant's interference.

p. 3

Legal principles established

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  • A registered proprietor of land is entitled to deal with it as he pleases, and there is no legal obligation on a parent to give a portion of his land to his adult children, whether married or unmarried.
  • Registration of a person as proprietor of land vests absolute ownership of that land in that person.

Court orders

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  1. 1.Judgment entered for the Plaintiffs as prayed in the plaint
  2. 2.Removal of the restriction placed against land parcel No. Ngandori/Ngovio/5424 to facilitate registration of the transfer in favour of the 2nd Plaintiff
  3. 3.Permanent injunction restraining the Defendant from interfering with land parcel No. Ngandori/Ngovio/5424
  4. 4.The Defendant shall have the right to harvest any food crops she may have planted in the current season upon maturity, excluding cash crops
  5. 5.Each party shall bear its own costs

Authorities

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Legislation

  • Land Registration Actsection 24(a)
  • Civil Procedure Act (Cap 21)section 27

Cases cited (1)

  • Esiroyo Vs Esiroyo & Another
    [1973] EA 388
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (original jurisdiction over land disputes); not expressly invoked 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, "Raurenjia Nguru Njiri & another v Jane Terry Wanjiru Mbogo [2018] KEELC 2446 (KLR)", Case Analysis (2018). E.L.C. Case No. 51 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2446/eng@2018-07-05

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