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ELCPartially AllowedEnvironment and Land Appeal 82 of 2021· [2023] KEELC 21052 (KLR)

Shera v Kirami

Environment and Land Court
17 October 2023
LNL. L. Naikuni
7,059 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~28 min to read original · ~4 min brief

The bottom line

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A Kenyan court sent a family land dispute back for retrial, ruling that an oral gift of land needs strong proof and that the title chain must be fully investigated.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Mombasa (LL Naikuni, J) against the judgment of Senior Principal Magistrate C. N. Ndegwa delivered on 16th December 2021 in CM/ELC No. 13 of 2018, which allowed the Respondent's claim for a permanent injunction and trespass damages of Kshs. 100,000 and dismissed the Appellant's counter-claim. The half-brothers disputed ownership of Mombasa/Mwembelegeza/1136: the Appellant claimed an oral gift inter vivos from his grandmother, the original allottee, perfected by possession and construction of a house since 1994; the Respondent relied on a chain of title through a Kadhi's court succession order to their mother and a 2017 transfer to himself. The court restated the duty of a first appellate court to re-evaluate evidence, and the law on gifts of land: they must be in writing or by registered transfer, though an imperfect gift may be perfected by conduct. Finding no empirical evidence (valuation or ground reports, photographs) that the Appellant developed Plot No. 1136, and noting the trial court had overlooked fundamental questions on the chain of title and the Respondent's capacity, the court held the appeal partially succeeded but that neither party was entitled to the reliefs sought. It remitted the matter to the Chief Magistrate's Court for retrial with directions for a locus in quo visit, independent survey, ground and valuation reports, and investigation of the title chain, ordered an inhibition under Section 68 of the Land Registration Act to preserve the land, and directed each party to bear their own costs.

Key legal issues

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01

Validity of the alleged oral gift inter vivos of the suit land to the Appellant

Holding

The gift was oral, never registered nor in writing, hence an imperfect gift; the Appellant's claim that it was perfected by conduct lacked empirical proof of possession or development on Plot No. 1136

Reasoning

The court accepted the settled law that gifts of land must be in writing or by registered transfer, and that an imperfect gift may be perfected by the donor's or parties' subsequent conduct. However, the record contained no valuation report, ground report or photographs proving the Appellant's house stood on Plot No. 1136 rather than elsewhere, so the court could not resolve the factual question and remitted it for retrial with a site visit.

p. 11
02

Validity of the chain of title from Mwanadie Ali Mwahutu to Asha Said Athman and then to the Respondent

Holding

The Respondent had to demonstrate the adjudication process, the transfers, consents, stamp duty and the Respondent's capacity; the trial court had not done so, warranting retrial

Reasoning

Guided by Sections 24, 25 and 26(1) of the Land Registration Act, the court held the registered proprietor's title is prima facie valid but the Respondent needed to prove the transfer chain, including how a person who was 10 years old at adjudication could have acquired title. The trial court overlooked these fundamental aspects, so the matter was remitted for retrial with directions to investigate the title chain.

p. 12
03

Duty of a first appellate court

Holding

The court is not bound by the trial court's findings of fact and must re-evaluate the evidence itself

Reasoning

Relying on Selle v Associated Motor Boat Co, Abok James Odera and Peters v Sunday Post, the court restated that a first appeal is by way of retrial: the appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions while making due allowance for not having seen or heard the witnesses.

p. 7

Legal principles established

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  • A first appellate court must re-evaluate, re-assess and re-analyze the evidence on the record and determine whether the trial court's conclusions stand
  • Gifts of land must be by registered transfer or in writing or by a declaration of trust in writing; gifts inter vivos must be complete to be valid
  • An imperfect gift may nonetheless be perfected by the conduct of the parties
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud, misrepresentation, or illegal/unprocedural/corrupt acquisition

Court orders

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  1. 1.The appeal partially succeeds
  2. 2.The matter be referred back to the trial Chief Magistrate Court (Civil Division) for re-trial, including an intensive site visit (locus in quo) under Order 18 Rule 11 of the Civil Procedure Rules 2010 and preparation of a site visit report
  3. 3.Parties to prepare independent land survey reports, ground and valuation reports of the suit land
  4. 4.Trial court to establish how and when the original owner Mwanadie Ali Mwahutu acquired the suit land during the Land Adjudication process
  5. 5.Trial court to establish when and how the original owner transferred the suit land to Asha Said Athman through empirical documentary evidence such as agreements, consents, transfer documents and stamp duty
  6. 6.Trial court to establish how and when Asha Ali Athman and Ali Said Shera became co-owners under the Registered Land Act, Cap. 300 (Repealed) in 2014 after the Act had been repealed in 2012
  7. 7.Trial court to establish how and when the property was subsequently transferred to Said Abdillahi Kirami, with proof of birth/identity documents for the Respondent
  8. 8.The matter to be mentioned before the Chief Magistrate Court Civil Division on 7th November, 2023 for allocation and retrial within 90 days
  9. 9.The judgment by the Chief Magistrate to be placed before this court thereafter for final directions
  10. 10.The land registrar to register an inhibition under Section 68 of the Land Registration Act to preserve the suit land
  11. 11.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 61
  • Land ActSection 7
  • Registered Land Act, Cap. 300 (Repealed)Sections 27, 28, 143(1)
  • Land Registration Act, No. 3 of 2012Sections 24, 25(1), 26(1), 68, 107
  • Civil Procedure Act, Cap. 21Sections 27(1), 79B and G
  • Civil Procedure Rules, 2010Order 42 Rules 11 and 13; Order 18 Rule 11
  • Environment and Land Court Act, No. 19 of 2011Section 13(2)(a), (d) and (e)
  • Land Act RegulationsRegulation 69(1)

Cases cited (12)

  • Ahmed Mohammed Noor v Abdi Aziz Osman
    (2019) eKLR Civil Appeal No. 156 of 2018 (Migori)

    Trial court erred in ignoring the pleaded issue of gift

  • Bwire v Wayo & Sailoki
    (Civil Appeal 032 of 2021) (2022) KEHC 7 KLR

    First appellate court's duty to re-evaluate evidence and make independent findings

  • Estate of M'Raiji Kithianoi (Deceased)
    Meru HCC Succession Cause No. 419 of 2004 (also cited as (2017) eKLR)

    Requirements of a valid gift inter vivos of land; must be complete and in writing

  • Evans Onguso & 2 Others v Peter Mbugua & 4 Others
    (2020) eKLR Kisii ELC No. 97 of 2007

    An imperfect gift may be perfected by the conduct of the parties

  • Daniel Ekirapa Orodi v Pius Enarachi Marago
    (2019) eKLR Busia

    Relied on by Appellant on trespass damages; distinguished by Respondent

  • Estate of Gedion Manthi Nzioka (Deceased)
    HC Succession No. 122 of 2010

    Cited by Respondent on gifts of land

  • Selle & Another v Associated Motor Boat Co. Ltd. & Others
    (1968) EA 123

    First appeal is by way of retrial; court must reconsider and evaluate evidence

  • Abok James Odera

    Primary role of first appellate court to re-evaluate, re-assess and re-analyze the record

  • Peters v Sunday Post Limited
    1958 E.A. 424

    Appellate court's jurisdiction to review findings of fact to be exercised with caution

  • Masek Ole Timukoi & 3 others v Kenya Grain Growers Ltd & 2 others
    ELC (Nku) No. 272 of 2015 (OS)

    Indefeasibility of title upon registration

  • M'Mbaoni M'Thaara v James Mbaka
    ELC (Chuka) No. 110 of 2017

    Indefeasibility of title upon registration

  • Dr. Joseph M. K. Arap Ngok v Justice Moijo Ole Keiwua
    Civil Appeal 60 of 1992

    Land property comes into existence after letter of allotment, fulfilment of conditions and issuance of title document

On appeal from
Chief Magistrate's Court at Mombasa (CM/ELC No. 13 of 2018)
CM/ELC No. 13 of 2018
Jurisdiction invoked
First appellate jurisdiction under Section 79B and G of the Civil Procedure Act and Order 42 Rules 11 and 13 of the Civil Procedure Rules, 2010

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, "Shera v Kirami", Case Analysis (2023). Environment and Land Appeal 82 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21052/eng@2023-10-17

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