Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedCivil Case No 148 of 2015· [2019] KEELC 4211 (KLR)

In re Estate of the Late Jackson Lomeri Lomachar (Represented By Florence Nasambu Khaemba v Selina Chelimo Jackson [2019] KEELC 4211 (KLR)

Environment and Land Court
13 March 2019
4,483 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

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

#
The plaintiffs, widows and administrators of the estate of Jackson Lomeri Lomachar, sued the defendant, a co-widow, by plaint dated 19/11/2015 seeking a declaration that Title No. West Pokot/Keringet A/2930 was fraudulently registered in her name on 18/1/2010, rectification of the register with transfer to the estate, preservation of the property, costs and interest. They also complained of the defendant's transfer of Kaisagat/Makhonge Block 1/Mwisho/81 without succession proceedings. The defendant pleaded limitation, asserted she was a bona fide purchaser from Amigos Boriot Kassachoon, and relied on a succession ruling excluding the suit land from the estate. The court framed four issues: limitation, who purchased the land, fraud, and appropriate orders. It held the fraud claim, filed within seven years of the alleged 2010 fraud, was not time barred. On the evidence, it found the defendant's agreement dated 4/11/1998 credible: the seller DW2 disowned the plaintiffs' agreements, whose witnesses were not called, and denied selling land to the deceased. The deceased had signed the defendant's agreement as a witness, implying approval. The court held the defendant's labour in the family shop for some 14 years was an economic contribution equivalent to her co-wives' labour, so the land was not estate property. The seller's mother, not joined as co-defendant, effected the transfer; no fraud was proved, so the title was not liable to cancellation. The suit was dismissed with no orders as to costs, the parties being family members.

Key legal issues

#
01

Limitation - whether the fraud claim was time barred

Holding

The claim, filed in 2015 alleging fraud committed in 2010, was within the seven-year limitation period for fraud-based claims; the defence failed.

Reasoning

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.

p. 3
02

Who purchased the suit land

Holding

The defendant, not the deceased, purchased the suit land; the agreement dated 4/11/1998 (D.Exh 1) was the only credible agreement.

Reasoning

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.

p. 5
03

Fraud and cancellation of title

Holding

The defendant was not guilty of fraud; her title was not liable to cancellation.

Reasoning

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.

p. 5
04

Whether the land purchased with shop proceeds belonged to the deceased's estate

Holding

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.

Reasoning

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.

p. 4

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. 1.The plaintiffs' suit is dismissed
  2. 2.There shall be no orders as to costs

Authorities

#

Legislation

  • Evidence ActSection 91 (as recited in submissions; text quoted under heading 97)
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.