Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEnvironment and Land Case Civil Suit 77 of 2014· [2023] KEELC 21152 (KLR)

Issa & another v Mbugua & 5 others

Environment and Land Court of Kenya
26 October 2023
6,761 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This Environment and Land Court judgment at Nairobi (LN Mbugua, J) determined a family land dispute over parcels arising from Dagoretti/Mutuini/699. The 1st Plaintiff claimed her deceased mother (the 2nd Plaintiff) gifted her the land and that the Defendants fraudulently subdivided and transferred it; she sought declarations of fraud, cancellation of registrations, eviction and a permanent injunction. The 2nd Plaintiff died in 2017 and her claim was marked as abated on 15.5.2019. The 1st, 4th-6th Defendants contended the land was gifted to the 1st Defendant and counterclaimed for a declaration of ownership of parcel 1136 and removal of cautions; the 2nd and 3rd Defendants pleaded purchase from the 2nd Plaintiff and limitation. The court held the deceased's witness statement inadmissible, a prior application to admit it having been dismissed. It found the alleged 2007 gift to the 1st Plaintiff was never perfected and the parcels no longer existed by then. Applying Peter Ndungu Thiongo, the court held the 1st Plaintiff's case was wholly reliant on her abated mother's case; she had no grant and no locus to challenge her mother's transactions. Fraud was not proved to the required standard. The plaintiffs' claim was dismissed, the defendants were found to be lawful owners of their respective parcels, the plaintiff's cautions were discharged and removed, and, as all parties save the 2nd Defendant are relatives, each party was ordered to bear their own costs.

Key legal issues

#
01

Admissibility of the deceased 2nd Plaintiff's witness statement

Holding

The statement is inadmissible; the application to admit it was dismissed for want of prosecution and the issue cannot be revisited in submissions.

Reasoning

The 1st Plaintiff had previously applied on 4.9.2019 to admit the deceased's witness statement; that application was dismissed for non-attendance. The court held it lacked mandate to reconsider the same issue at submissions stage, so the statement was excluded from evidence.

02

Whether the 1st Plaintiff was deprived of Dagoretti/Mutuini/699 or 920 by way of an imperfect gift

Holding

No; the alleged 2007 bequest was a gift intervivos that was never perfected, and the parcels did not even exist by 2007 having been subdivided and transferred in 1991 and 1996.

Reasoning

The court applied Halsbury's Laws on incomplete gifts: a gift resting in promise is unenforceable. No transfer was effected. Parcel 699 was subdivided in 1991 and parcel 920 was registered to the 2nd Defendant on 15.8.1996, so nothing remained to give in 2007.

p. 11
03

Effect of the abatement of the 2nd Plaintiff's suit on the 1st Plaintiff's claim

Holding

The 1st Plaintiff's case was wholly reliant on her mother's case, which abated on 15.5.2019; she has no locus to challenge the transactions made by her mother.

Reasoning

Following Peter Ndungu Thiongo, where the substratum of a suit is a deceased party's claim and there is no legal representative, the whole suit abates. The 1st Plaintiff, without letters of administration, cannot litigate through her mother or attack the subdivisions and transfers.

p. 12
04

Whether the defendants are lawfully registered owners and whether the cautions should be removed

Holding

Yes; the defendants are lawful owners of their respective parcels and the plaintiff's cautions are discharged and removed.

Reasoning

The 2nd Plaintiff willfully ceded parcel 818 to the 1st Defendant and sold parcel 920 to the 2nd and 3rd Defendants; that evidence was uncontroverted. Fraud was not proved to the required standard, so the counterclaim of the 1st, 4th-6th Defendants succeeds.

p. 12

Legal principles established

#
  • A gift resting merely in promise or unfulfilled intention is incomplete and unenforceable; the donor must have done everything necessary to transfer the property
  • Where a plaintiff's cause of action is entirely reliant on a deceased party's claim which has abated, the surviving plaintiff's suit cannot stand alone
  • A party cannot reopen, through submissions, an interlocutory issue already decided by the court

Court orders

#
  1. 1.Plaintiffs' claim is dismissed
  2. 2.The defendants are found to be the lawful owners of their respective parcels
  3. 3.The caution lodged by the plaintiff in respect of any of the suit properties including Dagoretti/Mutuini 1136, 1113 or 1114 is discharged and removed
  4. 4.Each party is to bear their own costs of the suit

Authorities

#

Legislation

  • Civil Procedure RulesOrder 24 Rule 3(2)
  • Limitation of Actions ActSection 38
  • Limitation of Actions ActSection 26
  • Registered Land Act (repealed)Section 28(a) and Section 30
  • Evidence ActSections 107 and 108
  • Land Registration ActSection 73(1)

Cases cited (15)

  • Alice Chemutati Too v Nickson Kipkurui Korir & 2 others
    [2015] eKLR

    Invalidity of titles procured through abuse of trust and fraud (cited by plaintiff)

  • Wambui v Mwangi & 3 others
    (Civil Appeal 465 of 2019) [2021] KECA 144 (KLR)

    Cited by plaintiff on challenge to titles

  • Arthi Highway Developers Limited v West End Butchery Limited & 6 others
    [2015] eKLR

    Cited by plaintiff on fraudulent transactions

  • Kitale Chepkorok Farm Limited v Peter Nasasa & 4 others
    [2021] eKLR

    Innocent purchaser doctrine; absence of land control board consent (cited by plaintiff)

  • Aggrey Swaka Waswa v Patrick Omonge Khaemba; Thomas Omonge Khaemba & 3 others (proposed Respondents)
    [2020] eKLR

    Effect of abatement of a deceased plaintiff's suit (cited by defendants)

  • Said Sweilem Gheithan Saanamum v Commissioner of Lands (being sued through the Attorney General & 5 others
    [2015] eKLR

    Abatement of deceased's suit (cited by defendants)

  • Anne Jepkemoi Ngeny v Joseph Tireita & Another
    [2021] eKLR

    Absence of cause of action (cited by defendants)

  • Ogango & another v Orangi & 3 others
    (Environment & Land Case 466 of 2015) [2023] KEELC 16348 (KLR)

    Proprietor's rights under the Registered Land Act to deal with land without consent (cited by defendants)

  • Vijay Morjaria v Nasingh Madhusingh Darbar & another
    [2000] eKLR

    Standard of proof of fraud allegations (cited by defendants)

  • Daniel Njuguna Mbugua v Peter Kiarie Njuguna & 2 others
    [2021] eKLR

    Locus following abatement of deceased's suit (cited by 2nd Defendant)

  • Weston Gitonga & 10 others v Peter Rugu Gikanaga & Another
    [2017] eKLR

    Doctrine of innocent purchaser for value without notice (cited by 2nd Defendant)

  • Maria Nganga Gwako v Charles Mwenzi Nganga
    [2014] eKLR

    Removal of unjustified caution under Section 73(1) Land Registration Act (cited by 3rd Defendant)

  • Peter Ndungu Thiongo & another v Juvenalis Gitau Muchuga & 6 others
    [2006] eKLR

    Abatement of whole suit where substratum is a deceased party's claim (applied by the court)

  • Peter Nyaga Kairu v Esther Wanjiku Njau & 5 others
    [2019] eKLR

    Mortui non mordent - dead persons cannot litigate or be litigated through

  • Halsbury's Laws of England, 4th Edition, Volume 20(1)
    paragraph 67

    Law on incomplete and imperfect gifts (applied by the court)

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land (Article 162(2)(b) of the Constitution; Environment and Land Court Act)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Issa & another v Mbugua & 5 others", Case Analysis (2023). Environment and Land Case Civil Suit 77 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21152/eng@2023-10-26

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