Juliet Gacheri Gikunda v Dominic Kiogora & another [2021] KEELC 3057 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a wife's appeal, ruling her husband's land sales were valid and she had no claim over inherited family land.
What this practically means
#Executive summary
#Key legal issues
#Validity of the sale agreements for want of Land Control Board consent
The issue was not pleaded and in any event lack of consent does not necessarily invalidate the agreement
The Appellant never pleaded invalidity for want of Land Control Board consent in her defence or counterclaim, so the trial court could not determine it. Further, case law permits courts to apply equitable principles and imply a trust in appropriate circumstances where consent is lacking, so the absence of consent is not automatically fatal to the sale.
Requirement of spousal consent to the sale
No spousal consent was legally required at the material time (2010-2012)
The spousal consent provisions became law with the Land Registration Act, 2012 and the Matrimonial Property Act, 2013, which came into force in January 2014. The overriding interest under Section 28 was itself repealed in 2016. The law could not apply retrospectively to the 2010 and 2012 transactions.
Alleged trust over the suit properties and matrimonial property claim
No evidence of a trust or that the properties were matrimonial property
The properties were inherited by the 2nd Respondent from his father; neither spouse contributed to their acquisition. Under Section 7 of the Matrimonial Property Act ownership vests according to contribution. The properties were vacant land with no family home, and the Appellant did not sue as guardian ad litem for the children.
Costs of the appeal
Each party to bear own costs given the family relationship
Although the general rule is that costs follow the event under Section 27 of the Civil Procedure Act, the court noted all parties are related and in its discretion directed each party to bear their own costs of the appeal.
Legal principles established
#- A first appellate court must re-evaluate the evidence afresh while making due allowance for not having seen or heard the witnesses
- Courts should not base decisions on unpleaded issues
- Lack of Land Control Board consent does not necessarily invalidate a sale agreement for agricultural land; courts may imply a trust in appropriate cases
- Spousal consent requirements under the Land Registration Act, 2012 cannot apply retrospectively to transactions predating the Act
- Costs follow the event under Section 27 of the Civil Procedure Act
Court orders
#- 1.The Appellant's appeal dismissed in its entirety
- 2.The judgment and decree of the trial court dated 30th January, 2019 in Nkubu PMCC No. 70 of 2014 affirmed
- 3.Each party shall bear his own costs of the appeal
- On appeal from
- Principal Magistrate's Court, Nkubu
- Nkubu PMCC No. 70 of 2014
- Jurisdiction invoked
- First appellate jurisdiction over the Principal Magistrate's Court judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Juliet Gacheri Gikunda v Dominic Kiogora & another [2021] KEELC 3057 (KLR)", Case Analysis (2021). Nkubu PMCC No. 70 of 2014 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3057/eng@2021-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.