Sirtich (Suing as personal and legal representative of the Estate of the late Michael Kiptum Sirtich Deceased) v Rono (Environment & Land Case 38 of 2021) [2023] KEELC 714 (KLR)
The bottom line
#A Kenyan court ordered eviction of a man who claimed land was gifted to him, ruling that verbal promises of land gifts are legally worthless without a written transfer.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant proved a gift inter vivos of Nandi/Kokwet/353
No gift inter vivos was proven; no written deed or transfer was adduced, and the gift was contested by the grant holder whose objection proceedings had been dismissed
Applying the test in Re Estate of the Late Gedieon Manthi Nzioka and Kagina v Kagina, a gift inter vivos requires a deed, written instrument or registered transfer, and if incomplete must be perfected or sanctioned by a court. The Defendant and his witnesses testified to a lifetime gift but produced no written deed or transfer. The gift was contested by the grant holder, and the Defendant's objection in the succession cause had been dismissed. The gift therefore failed.
Whether Nandi/Kokwet/353 formed part of the estate of the Plaintiff's father
Yes; the property was registered to the Plaintiff's father in 1968 and on his demise formed part of his estate, distributable in the succession cause
Both PW1 and DW1 confirmed the property belonged to the Plaintiff's father, confirmed by entry 1 in the green card showing registration on 4/9/1968. Upon his death it became eligible for distribution in a succession cause. The grant in Kapsabet PMCC P & A No. 84/1993 was not appealed against, so the Plaintiff obtained ownership by transmission, albeit as trustee for his siblings, and the Defendant's occupation lacked legal basis and amounted to trespass.
Whether the Plaintiff proved ownership and entitlement to relief
Yes; on a balance of probabilities the Plaintiff proved ownership, protected under Sections 24, 25 and 26 of the Land Registration Act, no fraud or illegality having been shown
The Plaintiff produced the original title deed and the green card showed registration in his name following transmission under the grant. No allegations of fraud or illegality were proven by the Defendant. The Defendant sold his own parcel (Nandi/Kokwet/358) and settled on an unproven promise of a gift, and his defence failed in its entirety. The Plaintiff was thus entitled to eviction and a permanent injunction.
Legal principles established
#- A gift inter vivos of land must be made by registered transfer, or if uncompleted, may be perfected by the grant holder if uncontested or sanctioned by a court where proven
- Where land is not transferred before death it forms part of the deceased's estate and falls to be administered and distributed in accordance with the law of succession
Court orders
#- 1.Judgment entered in favour of the Plaintiff for eviction of the Defendant
- 2.Permanent injunction restraining the Defendant, whether by himself, his servants and/or agents, from entering or using or interfering with the Plaintiff's quiet possession of Nandi/Kokwet/353
- 3.Plaintiff to issue a 60-day eviction notice to the Defendant
- 4.Costs of the suit awarded to the Plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (matter transferred by consent from the High Court, Eldoret)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sirtich (Suing as personal and legal representative of the Estate of the late Michael Kiptum Sirtich Deceased) v Rono (Environment & Land Case 38 of 2021) [2023] KEELC 714 (KLR)", Case Analysis (2023). ELC No. 43 of 2015 (formerly Eldoret High Court Civil Case No. 227 of 2000). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/714/eng@2023-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.