Jelimo & another v Chumba (Environment and Land Appeal E006 of 2023) [2025] KEELC 433 (KLR)

The court accepted the woman-to-woman marriage was undisputed but noted the deceased's will awarded the 1st appellant 3 acres (Nandi/Ndurio/790), which DW2 conceded. The suit land was instead bequeathed and registered to the respondent on 18th August 2004 while the deceased was alive. The 1st appellant never registered her own portion. Customary law applies under Section 3(2) of the Judicature Act but does not displace the deceased's completed disposition.

The court held that subdivision and registration of the suit land in the respondent's name took place during the deceased's lifetime, so no grant of representation was required. Relying on Re Estate of the Late Gedion Manthi Nzioka and Halsbury's Laws of England, a gift of registered land is completed by registered transfer; the deceased did everything within her power to perfect the gift. The 1st appellant never challenged the will's validity, so the appellants are bound by it.

Citing Vijay Morjaria, Kinyanjui Kamau and Gladys Wanjiru Ngacha, the court reiterated that fraud must be specifically pleaded and strictly proved to a standard higher than balance of probabilities. The particulars of fraud were not set out in the defence and counterclaim. The trial court's finding that no fraud was proved was affirmed, and the respondent proved the root of her title as required by Munyu Maina.

The court examined the entire trial record and found the impugned judgment delineated the issue, discussed it and reached a reasoned decision in compliance with Order 21 Rule 4. There was no indication of bias, hostility or reliance solely on the respondent's submissions. The legal burden of proof rested on the claimant under Sections 107-109 of the Evidence Act, and the respondent discharged it on a balance of probabilities while the appellants failed to prove their case.