MM & another v Kenneth Kamichia M’ikirima & 4 others [2021] KEELC 2628 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed an appeal challenging a father's subdivision of his land, confirming no one can force him to share property while alive.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the issue that the suit land is ancestral land, raised for the first time on appeal, could be entertained
- 2.Whether the current appellants proved their case to the required standard before the trial court
- 3.Whether the subdivision of the suit land was carried out lawfully
- 4.Whether the trial magistrate erred in holding that the 1st appellant did not testify
Key legal issues
#Pleading of ancestral land claim
The claim that the suit land was ancestral land could not be entertained as it was neither pleaded nor supported by evidence
The appellate court held that a party cannot introduce on appeal an issue that was not contested before the trial court, relying on Kiplagat Korir v Dennis Kipngeno Mutai and the Supreme Court's decision in Coast Professional Freighters, as it would prejudice the respondents who had no opportunity to respond.
Mental capacity of the 1st appellant and Order 32 rule 15
The mental incapacity of the 1st appellant was never pleaded and no guardianship proceedings under Order 32 rule 15 were initiated, so the 2nd appellant could not testify as his legal guardian
The court distinguished MKN v NMN because there the claimant was already a legal guardian. PW1 merely gave her own testimony and that of the 1st appellant without stepping into his shoes as legal guardian, so the trial magistrate correctly found the 1st appellant did not testify.
Validity of the subdivision and gifts inter vivos
The subdivision was carried out by the 1st appellant as a living person distributing his property, and equal distribution among children cannot be compelled
Evidence showed the 1st appellant obtained land control board consent and signed the mutation forms. Even if allocation was unequal, the court will not interfere with the wishes of a living registered proprietor making gifts inter vivos; a person cannot be compelled to distribute property among children during his lifetime.
Alleged additional parcels
Parcels claimed as subdivisions of the suit land were in fact subdivisions of other parcels, and the appellants adduced no evidence to the contrary
The green cards produced showed that parcels Ntima/Igoki/xxxx-xxxx arose from subdivisions of parcels other than the suit land. Parcel xxxx remained in the 1st appellant's name, corroborating that it was meant for the 2nd appellant who refused to execute transfer documents.
Legal principles established
#- An issue raised for the first time on appeal which was not pleaded or contested before the trial court cannot be entertained on appeal
- A registered proprietor cannot be compelled to distribute property among his children during his lifetime; gifts inter vivos stand
- The burden of proof lies on the party who asserts the affirmative of the issue
Court orders
#- 1.The appeal is dismissed
- 2.The 2nd appellant is condemned to pay costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Meru
- Case No. 11 of 2017 (originally ELC Case No. 33 of 2016)
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrates' Court (ELC matter transferred to the magistrates' court)
Relief refused
#Setting aside the subdivision of parcel NTIMA/IGOKI/xxxx and reverting parcels to the original title
The ancestral land claim was not pleaded nor proved, no legal guardian proceedings were initiated for the 1st appellant, and the registered owner was sharing out his land as a living person (gift inter vivos)
Costs
The 2nd appellant is condemned to pay costs of the suit
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the appellants cannot place an issue before this court which was not a subject of contest before the trial court
at no time did she step in the shoes of the 1 st appellant as his legal guardian.
In law a person cannot be compelled to distribute his property amongst his children during his lifetime….
Accordingly, this appeal is hereby dismissed. Ordinarily when it comes to family disputes, I desist from condemning parties to pay costs.
Issues in the judgment
#Grounds of appeal refer to 'the 1st appellant had offered sufficient evidence for her claim' and 'his testimony will be given by the 1st appellant', using inconsistent pronouns for the 1st and 2nd appellants
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MM & another v Kenneth Kamichia M’ikirima & 4 others [2021] KEELC 2628 (KLR)", Case Analysis (2021). Case No. 11 of 2017 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2628/eng@2021-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.