In re Estate of the Late Jackson Lomeri Lomachar (Represented By Florence Nasambu Khaemba v Selina Chelimo Jackson [2019] KEELC 4211 (KLR)
The bottom line
#A Kenyan court dismissed a widow's family land claim because she failed to prove the property belonged to her late husband's estate rather than her co-widow.
What this practically means
#Executive summary
#Key legal issues
#Limitation - whether the fraud claim was time barred
The claim, filed in 2015 alleging fraud committed in 2010, was within the seven-year limitation period for fraud-based claims; the defence failed.
The claim was founded on fraud allegedly committed in 2010 when the title was issued. A fraud-based claim must be filed within seven years of the fraud. Since seven years had not elapsed between the alleged fraud and the filing of suit in 2015, the defence of limitation had no merit.
Who purchased the suit land
The defendant, not the deceased, purchased the suit land; the agreement dated 4/11/1998 (D.Exh 1) was the only credible agreement.
The plaintiffs' agreements (PExh 2 and 3) were disowned by the seller and their witnesses were not called. The seller's evidence that he sold 3.75 acres to the defendant stood uncontroverted, corroborated by the transfer executed by the seller's mother as administrator of the seller's estate. The deceased signed the defendant's agreement as a witness, implying approval of her purchase. Amigos denied selling land to the deceased.
Fraud and cancellation of title
The defendant was not guilty of fraud; her title was not liable to cancellation.
The transfer was effected by the seller's mother, who was not joined as a co-defendant. Since the court found the defendant had genuinely purchased the land, what was transferred to her was what she had purchased. Fraud must be proved by concrete evidence in respect of the disputed land, not inferred from unrelated transactions.
Whether the land purchased with shop proceeds belonged to the deceased's estate
The defendant's labour in the shop was an economic contribution equivalent to her co-wives' labour on their plots; the purchase benefited her, not the estate.
Although the shop licence was in the deceased's name, the defendant operated it for about 14 years without salary. Her labour was an economic contribution. The deceased witnessed the purchase agreement, showing approval. The court declined to conclude that shop proceeds financed a purchase for the estate.
Legal principles established
#- A claim based on fraud must be instituted within seven years from the date the cause of action based on fraud occurred.
- Each fact alleged must be proved on its own; a party's past conduct on an undisputed parcel cannot justify a finding of fraud on a disputed parcel without concrete evidence.
- A spouse who labours in a family business may acquire property in her own right; the fact that shop proceeds financed the purchase does not make the property part of the husband's estate, especially where the husband witnessed the purchase agreement.
Court orders
#- 1.The plaintiffs' suit is dismissed
- 2.There shall be no orders as to costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (ordinary plaint)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of the Late Jackson Lomeri Lomachar (Represented By Florence Nasambu Khaemba v Selina Chelimo Jackson [2019] KEELC 4211 (KLR)", Case Analysis (2019). Civil Case No 148 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4211/eng@2019-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.