Koimbori & another v Kamau & 4 others (Environment & Land Case 254 of 2018) [2025] KEELC 412 (KLR)
The bottom line
#The Environment and Land Court dismissed two sisters' claim to family land, ruling their late mother validly gifted it to her grandsons during her lifetime.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st and 2nd Defendants lawfully gained title to the suit property
The court found that the late Rachel Wairimu Waweru lawfully gifted the suit property to the 1st and 2nd Defendants by way of gift inter vivos, perfected and completed in her lifetime; the Plaintiffs failed to prove fraud
The court applied the requirements for a valid gift inter vivos: the gift may be by deed, instrument in writing or delivery, and gifts of land must be by registered transfer, completed in the donor's lifetime. The transfer was effected and stamped during Rachel Wairimu Waweru's lifetime, who had capacity. The Plaintiffs' suspicions about the thumbprint were rebutted by other documents signed by thumbprint, and no expert evidence of forgery was tendered. Allegations of fraud, requiring a standard of proof higher than balance of probabilities, were not proved.
Whether the Plaintiffs had an enforceable interest based on the promise to subdivide and transfer the land
The oral promise was an incomplete gift which was later revoked by the donor and cannot be enforced
The court held that a gift resting merely in promise or unfulfilled intention is incomplete and imperfect and the court will not compel the donor to perfect it. Rachel initially took steps to subdivide, but following an acrimonious demand by the 2nd Plaintiff, her conduct pivoted: she failed to execute a transfer, transferred the land to the 1st and 2nd Defendants, and revoked her earlier depositions through the affidavit of 11th April 2018. The promise was therefore cancelled and unenforceable.
Whether the suit property was subject to a customary trust in favour of the Plaintiffs
The Plaintiffs failed to prove a customary trust to the required standard
Applying the Supreme Court's test in Kiebia vs M'lintari, the Plaintiffs were required to prove, among other elements, that the land was family, clan or group land before registration and that they would have been entitled to be registered but for intervening circumstances. They adduced no evidence on the process by which Rachel Wairimu Waweru obtained title, leaving the court with no basis to evaluate whether an intention to create a customary trust existed at first registration.
Legal principles established
#- Fraud must be specifically pleaded and distinctly proved; it cannot be inferred from the facts
- A gift inter vivos of land may be effected by registered transfer, deed, instrument in writing or delivery, and must be completed in the donor's lifetime
- A gift resting merely in promise or unfulfilled intention is incomplete and unenforceable
- Elements for proving a customary trust as set out by the Supreme Court
Court orders
#- 1.The Plaintiffs' suit is dismissed
- 2.The Plaintiffs shall bear the costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to ownership of land (not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Koimbori & another v Kamau & 4 others (Environment & Land Case 254 of 2018) [2025] KEELC 412 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/412/eng@2025-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.