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ELCDismissed· [2023] KEELC 885 (KLR)

Kerich v Nandi County Government (Environment & Land Case 41 of 2021) [2023] KEELC 885 (KLR)

Environment and Land Court
16 February 2023
MMM. N. Mwanyale
4,211 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The court ruled that land validly gifted and transferred during the owner's lifetime never forms part of their estate, dismissing the family's claim against Nandi County.

What this practically means

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Executive summary

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The original plaintiff, Maichii Tamining Kerich (since deceased and substituted by her son Philip Kirwa Metto, an administrator of the estate of Kimeto Kerich Chepsiror), sued the County Government of Nandi seeking cancellation of title L.R. Nandi/lolkeringet/34, a declaration that she was the sole legal owner, a permanent injunction, and a declaration that the surrender of the land was fraudulent, illegal, null and void. Her case was that the land formed part of her late husband's estate, was bequeathed to the late Leah Jelimo Kerich, and that any transfer or surrender was invalid for want of consent, consideration and proper execution. The Defendant denied fraud and claimed ownership inherited from the defunct County Council of Nandi upon devolution. The court framed four issues. On the first, it found the land could not have formed part of the estate because the green card showed it was registered to the County Council of Nandi on 14/3/1990, seven years before the donor's death in 1997; its inclusion in the succession cause was an error. On the second, applying the law on gifts inter vivos, the court found a valid gift had been made in writing by registered transfer during the donor's lifetime, with the change of beneficiary from Kongurwet to Kapkoros Primary School explained by church sponsorship. On the third, the court held the plaintiff failed to discharge the burden of proof under Section 107 of the Evidence Act, having produced no documents and proved no particulars of fraud. The suit was dismissed with costs to the Defendant.

Key legal issues

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01

Whether L.R. Nandi/lolkeringet/34 formed part of the estate of the late Kimetto Kerich Chepsiror

Holding

It did not; the land was transferred by gift to the County Council of Nandi in 1990, seven years before the deceased's death, so its inclusion in the succession cause was made in error

Reasoning

For the property to form part of the estate it must have been registered in the deceased's name at death in 1997. The green card (D Exhibit 1) showed registration of the County Council of Nandi on 14/3/1990. The Plaintiff produced none of the documents in her list to prove the land was estate property; inclusion in the 2002 succession cause was an error.

p. 7
02

Whether the suit land was validly gifted to the Defendant's predecessor

Holding

Yes; a valid, perfected gift inter vivos was made in writing by transfer registered during the donor's lifetime in favour of the County Council of Nandi for a public school

Reasoning

The elements of a gift inter vivos were satisfied: the transfer forms, application for consent and consent, all executed by the deceased, were produced. The change of beneficiary from Kongurwet to Kapkoros Primary School was explained by DW1 as arising from church sponsorship. Registration on 8/2/1990 perfected the gift before the donor died in 1997.

p. 8
03

Whether the Plaintiff proved his case on a balance of probabilities

Holding

No; the Plaintiff adduced no documentary evidence, called no corroborating witness, and proved none of the pleaded particulars of fraud

Reasoning

Section 107 of the Evidence Act places the burden of proof on the party asserting facts. The Plaintiff failed to produce the listed documents or call additional witnesses. Fraud was pleaded but not proved, and the Plaintiff expected the Defendant to offer explanations for particulars of fraud that the Plaintiff himself pleaded.

p. 8

Legal principles established

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  • Gifts inter vivos of land must be in writing by way of a deed or registered transfer, and may be perfect or imperfect
  • A perfected gift inter vivos registered during the donor's lifetime divests the property from the donor's estate
  • He who asserts must prove; allegations of fraud must be proved by the party pleading them

Court orders

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  1. 1.The Plaintiff's suit is dismissed with costs

Authorities

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Legislation

  • Law of Succession ActSection 83
  • Evidence ActSection 107

Cases cited (5)

  • Dyno Holdings Limited vs National Land Commission and Another
    (2018) eKLR
  • In the matter of the Estate of Gerald Kabue Gatimu (Nyeri Succession Cause No. 504/2008)
  • Re Estate of the late Gedion Manthi Nzioka (deceased)
    2016 eKLR
  • Kagina vs Kagina and 2 others
  • Wilson Kiprop Sirtich Vs Richard Kiptarbei Another Case No. 38/2021 (Kapsabet)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land (transferred from the Eldoret ELC upon establishment of the Kapsabet court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kerich v Nandi County Government (Environment & Land Case 41 of 2021) [2023] KEELC 885 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/885/eng@2023-02-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.