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Case Brief · caselaw.co.ke
ELCDismissedEnvironment & Land Case 135 of 2016· [2023] KEELC 18737 (KLR)

Nickson & another v Mabonga & 3 others

Environment and Land Court
13 July 2023
1,740 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Eldoret dismissed a family land claim because the plaintiffs could not prove they ever contributed money to buy the property.

What this practically means

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Executive summary

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The Plaintiffs, nephew and sister-in-law of the late Dismas Wafula Masakhwe, sued the 1st Defendant (his widow), the 2nd Defendant (purchaser from her), and two others, seeking a permanent injunction over 0.6 of an acre delineated from Soy/Soy Block 10 (Navillus)/534, general damages, costs and interest. The Plaintiffs claimed six family members each contributed Kshs 10,000/= towards the purchase of the land from Beatrice Khasoa Rotich by Dismas Wafula Masakhwe in 2001, for settlement of Juliana Nekesa Masakhwe, and that the 1st Defendant's subsequent sale to the 3rd Defendant was null and void under section 45 of the Law of Succession Act. The Defendants countered that the Plaintiffs lacked locus standi, having taken out letters of administration over Dismas's estate secretly and without a grant over Juliana's estate, and that no contribution was proved. The 1st Defendant testified she sold the land because the family sought to disinherit her; she had since been joined as administratrix of her late husband's estate. The court framed four issues: contribution, family-property status, entitlement to reliefs, and costs. It found no evidence of contribution, disbelieved the 1st Plaintiff, held the property belonged to Dismas Wafula Masakhwe, and held the widow was rightfully the heir entitled to sell despite intermeddling. The suit was dismissed with costs to the Defendants.

Key legal issues

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01

Locus standi of the Plaintiffs

Holding

Defendants raised locus standi, arguing Plaintiffs had no grant in respect of Juliana Nekesa Masakhwe's estate; the court did not rest dismissal on this but found the claim belonged to the deceased Dismas Wafula Masakhwe

Reasoning

The Defendants relied on authority that a party without sufficient interest cannot be heard. The court instead assessed the evidence and found the Plaintiffs had not proved contribution or family ownership, and that the cause of action belonged to the estate of Dismas Wafula Masakhwe, whom the Plaintiffs had sought to disinherit.

p. 3
02

Whether six family members contributed to the purchase price

Holding

No evidence of contribution by six persons; the claim was disbelieved

Reasoning

The 1st Plaintiff alleged six family members each contributed Kshs 10,000/= towards the purchase. The court found no evidence supporting this and noted the inconsistency: if there had been contribution, the Plaintiffs would not have objected only to sale to an outsider while accepting sale to a family member.

p. 4
03

Whether the suit property was family property

Holding

Not proved; the property was purchased by Dismas Wafula Masakhwe and belonged to him and his estate

Reasoning

The Plaintiffs' own evidence showed the property was bought by Dismas Wafula Masakhwe from Beatrice Khasoa Rotich. The court found the Plaintiffs were attempting to disinherit the widow, who was the rightful heir, and that the claim properly belonged to Dismas Wafula Masakhwe.

p. 4
04

Validity of the 1st Defendant's sale to the 3rd Defendant

Holding

The sale was not invalidated; the widow was the rightful heir entitled to sell despite lacking a confirmed grant, though she intermeddled

Reasoning

The court held that although the 1st Defendant had no confirmed grant and intermeddled in the estate, she was rightfully the heir and entitled to sell, being liable only to account to herself and her children who were entitled to the property.

p. 4

Legal principles established

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  • A party claiming a beneficial interest through contribution to purchase price must adduce evidence of that contribution
  • A widow rightfully entitled as heir may deal with estate property notwithstanding lack of a confirmed grant, subject to accounting for intermeddling

Court orders

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  1. 1.Suit dismissed with costs to the Defendants

Authorities

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Legislation

  • Law of Succession Actsection 45

Cases cited (4)

  • Grace Mwakiria Mugambi v Philip Kimani
    [2018] eKLR

    Locus standi requires sufficient connection and direct personal harm or prejudice

  • Christopher Mutiembu Machimbo & 3 others v County Surveyor Transnzoia & 4 others
    [2022] eKLR

    Citing Law Society of Kenya v Commissioner of Lands and Alfred Njau v City Council of Nairobi on locus standi

  • Law Society of Kenya v Commissioner of Lands & Others
    Nakuru High Court Civil Case No. 464 of 2000

    Locus standi signifies a right to be heard; sufficiency of interest to sue

  • Alfred Njau and Others v City Council of Nairobi
    [1982] KAR 229

    Locus standi means the right to appear and be heard in court

Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (suit concerning title to land)

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, "Nickson & another v Mabonga & 3 others", Case Analysis (2023). Environment & Land Case 135 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18737/eng@2023-07-13

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