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ELCDismissedOriginating Summons dated 6th February 2023· [2024] KEELC 491 (KLR)

Kipkorir & another v Kiptoo (Environment & Land Case E001 of 2023) [2024] KEELC 491 (KLR)

Environment and Land Court
5 February 2024
LWL. N. Waithaka
2,398 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a family land claim because the heirs could not prove fraud—the land was validly gifted while the owner was alive.

What this practically means

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Executive summary

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By Originating Summons dated 6th February 2023, the plaintiffs, administrators ad litem of the estate of their grandmother Regina Sote Cheboi (deceased 2nd March 2017), sought orders compelling the defendant to explain how title to parcel Irong/Iten/3713 changed to his name, to release their respective shares, to deposit the title deed in court, and to restrain him from dealing with the property to their detriment. The defendant denied the allegations, contending that his great grandmother gifted him the land inter vivos during her lifetime, and argued that allegations of fraud could not be determined by way of originating summons and that the court lacked jurisdiction to distribute a deceased's estate. Pursuant to directions, the OS was converted into a plaint and heard by viva voce evidence. The plaintiffs' witness admitted that the deceased had attempted to transfer the land to the defendant at the Land Control Board in 2013 in the plaintiffs' presence. The defendant testified that the deceased subdivided the parcel, transferred land to him, and instructed him to subdivide and sell portions to settle her debts. The court framed the sole issue as whether the plaintiffs had made up a case for the orders sought. It found that the suit property was transferred during the owner's lifetime with the plaintiffs' knowledge, that the plaintiffs adduced no evidence proving the pleaded fraud or illegality, and that the defendant gave a plausible and believable explanation of his acquisition. The suit was dismissed with costs to the defendant on 5th February 2024.

Key legal issues

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01

Whether the plaintiffs proved fraud, illegality or unlawfulness in the transfer of the suit property to the defendant

Holding

No - the plaintiffs failed to prove the pleaded fraud; the defendant offered a plausible and believable explanation of his acquisition

Reasoning

Although the plaintiffs alleged that the transfer was fraudulent and illegal, particularly for want of land control board consent, they led no evidence capable of proving the pleaded fraud. The plaintiffs themselves knew of the deceased's intention to transfer the land, having objected at the Land Control Board in 2013. The defendant's account of a gift inter vivos, completed during the donor's lifetime, was accepted as plausible and believable.

02

Whether the suit property formed part of the estate of Regina Sote Cheboi available for distribution

Holding

No - the property was transferred to the defendant during the deceased's lifetime as a gift inter vivos and did not form part of her free estate

Reasoning

The evidence established that the deceased subdivided Irong/Iten/159 and transferred the resultant parcel to the defendant while she was alive, with the plaintiffs objecting but aware of the transaction. A transfer perfected during the donor's lifetime takes the property out of the estate. The court therefore found no basis for the orders for ascertainment and release of shares to the estate's beneficiaries.

p. 5

Legal principles established

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  • A party alleging fraud, illegality or unlawfulness in a land transfer must adduce evidence capable of proving the pleaded fraud to the requisite standard
  • A gift of land inter vivos perfected during the donor's lifetime does not form part of the donor's free estate

Court orders

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  1. 1.The plaintiffs' suit is dismissed
  2. 2.Costs of the suit awarded to the defendant

Authorities

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Legislation

  • Land Control Act, Cap 302 Laws of KenyaSection 6

Cases cited (2)

  • Monica Nyawira Wahome v Veronica Wambui
    2019 eKLR
  • Mukokinya M'arithi v. Patrick Munkiri Kabundu
    2021 eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - suit concerning title to land; originating summons converted to plaint by consent directions

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, "Kipkorir & another v Kiptoo (Environment & Land Case E001 of 2023) [2024] KEELC 491 (KLR)", Case Analysis (2024). Originating Summons dated 6th February 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/491/eng@2024-02-05

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