Alphonce Ngungi Wambua v Alphonce Ngungi Wambua & 4 others [2020] KEELC 2382 (KLR)
The bottom line
#A Kenyan court dismissed a brother's land claim because he never challenged the family land sharing while his mother was alive, and now he must vacate.
What this practically means
#Executive summary
#Key legal issues
#Whether parcels Ukia/Kilala/524 and 767 were to be shared equally from the parents' unsurveyed land
No. The mother subdivided the land during the adjudication process and the Plaintiff never questioned the disparity during her lifetime; the Plaintiff also failed to obtain letters of administration.
Both parcels were originally the parents' unsurveyed land. During adjudication the mother, then alive, had the land subdivided and instructed the sons to collect their title deeds. The Plaintiff's assertion that the 1st Defendant oversaw the adjudication was tenuous, contradicted by the Defendant and unsupported by records. The Plaintiff did not challenge the sharing during his parents' lifetime and did not take out letters of administration to represent the estate, so the claim was non-suited.
Whether the Defendant (Plaintiff in ELC No. 22/18) is entitled to orders over Ukia/Kilala/672
Yes. The 1st Defendant proved on a balance of probabilities that he gave his mother money for the purchase of the land, and the Plaintiff was ordered to vacate.
It was common ground that the land was bought from Kyonda by the parties' late mother. The 1st Defendant gave uncontroverted evidence that he was in gainful employment when the land was bought and gave his mother Kshs.11,000/= towards the purchase. The court believed him, noting he was a candid witness who had allowed the Plaintiff to occupy his house. The claim in ELC No. 22/18, treated as a counterclaim, thus succeeded.
Whether the removal of the caution by the Land Registrar was unprocedural
No. The Plaintiff admitted in cross-examination that he was served with the notice of the caution by the Registrar, so the removal was not unprocedural.
Counsel for the Plaintiff submitted that no notice was given to the cautioner and no objection proceedings were produced, relying on s.73 of the Land Registration Act and the Rutere case. However, the court noted that the Plaintiff himself admitted in cross-examination that he was served with notice concerning the caution, which defeated the argument that the removal process was illegal.
Legal principles established
#- A person who feels aggrieved by how a parent dealt with property during the parent's lifetime must question it during the parent's lifetime, and cannot wait until after death
- A claim to a deceased parent's land must be pursued through succession, by taking out letters of administration to represent the estate
Court orders
#- 1.Dismissal of the Plaintiff's suit with costs to the 1st, 2nd and 3rd Defendants
- 2.Judgment entered for the Defendant against the Plaintiff in the counterclaim (ELC No. 22 of 2018 treated as a counterclaim)
- 3.The Plaintiff has 120 days from the date of judgment to vacate from the Defendant's land parcel number Ukia/Kilala/672, failing which the Defendant may apply for an order of eviction
- 4.Costs of the suit to the Defendant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over land parcels in Makueni County
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alphonce Ngungi Wambua v Alphonce Ngungi Wambua & 4 others [2020] KEELC 2382 (KLR)", Case Analysis (2020). ELC Suit No. 34 of 2017 (Consolidated with ELC Suit No. 22 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2382/eng@2020-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.