https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3015

Kangeri & 4 others v Karingithi & 5 others (Environment and Land Appeal 32 of 2021) [2026] KEELC 3015 (KLR) (13 May 2026) (Judgment) Neutral citation: [2026] KEELC 3015 (KLR) Republic of Kenya In the Environment and Land Court at Nyeri Environment and Land Appeal 32 of 2021 EK Makori, J May 13, 2026 Between John Wanjau Kangeri 1st Appellant Julius Karingithi Kangeri 2nd Appellant George Githinji Kangeri 3rd Appellant Benson Githui Kangeri 4th Appellant Stanley Nyamu Kangeri 5th Appellant and James Karingithi 1st Respondent Lucy Gakenia Kamanja 2nd Respondent Elizabeth Wagithi 3rd Respondent Richard Githaiga 4th Respondent The Honourable Attorney General 5th Respondent The Land Registrar, Nyeri District 6th Respondent (Being an appeal against the judgment and decree dated and delivered on September 13, 2021, by Hon. R. Kefa, Principal Magistrate, in Nyeri, CMCC No. 93 of 2018) Judgment 1.The Appellants filed this Appeal, being aggrieved and dissatisfied with the Judgment and decree dated and delivered on 13th September 2021 by Hon R. Kefa, Principal Magistrate, in Nyeri CMCC NO 93 of 2018. Their Memorandum of Appeal dated 21st September 2021 sets forth the following grounds of appeal:a.The Learned Trial Magistrate erred in both law and fact by heavily relying on her judgment on alleged discrepancies in dates on the Mutation form, without seeking an expert opinion on the process of land survey, and thus arrived at a wrong conclusion.b.The Learned Trial Magistrate misdirected herself by dismissing and casting aspersions on the 1st - 5th defendants’ exhibit for the application of Land Board Consent and by arriving at a conclusion not supported by evidence that the deceased Sospeter Kangeri Karingithi did not sign the said document.c.The Learned Trial Magistrate misdirected herself by holding that the mutation form was not signed by the deceased, without any evidence to support her erroneous finding, and, on the other hand, placed heavy reliance on the date of registration of the transfers, which could only have been done after the registration of the Mutation, which she dismissed.d.The Learned Trial Magistrate erred in both law and fact by dismissing the defendant's evidence that the deceased had signed the Mutation and Transfer while alive, with only the registration of the transfers pending at the time of his death.e.The Learned Trial Magistrate erred in both Law and in fact in failing to fully appreciate the principle of Gift inter vivos, thereby dismissing the appellants' evidence, which had satisfied the conditions for presumption of gifts made by a living person.f.The Learned Magistrate erred in both law and fact in making a finding of law and fact that the defendants had committed fraud, when fraud had neither been pleaded nor particularized in the plaint, nor was it proved.g.The judgment and decree were against the weight of the evidence 2.The Appellant prays for the following orders:a.This appeal is permitted.b.The judgment delivered on 13th September 2021 be set aside.c.The plaintiffs' suit in the Lower Court be dismissed.d.costs be awarded to the appellants. The background of the suit before the trial court 3.The suit before the trial court, CMELC 93 of 2018, was instituted by way of a Plaint dated 2nd May 2018, in which the Plaintiffs averred that at all material times to the suit, Gladys Josephine Wanja was the second wife of Sospeter Kangeri Karingithi (Deceased) before she divorced him. The 1st-5th Plaintiffs are the biological children of the aforementioned two individuals. 4.That the Deceased passed away on January 26, 2014, leaving behind LR. Magutu/Gatei/312 as the property to be equally distributed. 5.On or about March 5, 2015, the Plaintiffs’ mother, Gladys Josephine Wanja, registered a caution over the suit land LR. Magutu/Gatei/312, as she had reason to believe that the Defendants herein intended to sell the land. 6.After conducting a search of the suit property, it was confirmed that the Defendants subdivided the property fraudulently into LR Numbers Magutu/Gatei/1582/1583/1584/1585/1586, without the Plaintiffs' knowledge or consent. 7.As a result, the Plaintiffs averred that they have been unable to obtain their share of their late father’s estate. Thus, they prayed that the subdivisions be declared illegal and canceled, and that Magutu/Gatei/312 be distributed equally among the deceased’s family members in accordance with the Law of Succession Act, as well as for the costs of the suit. 8.The 1st through 5th Defendants filed a joint statement of defense and admitted that their father did indeed pass away on January 26, 2016, and that the said Gladys Josephine Wanja was married to him and divorced him by Nyeri Divorce Cause 2 of 1976. 9.Their position was that the Plaintiffs and their mother have no legal or beneficial interest in the Estate of the Defendants’ late father. They noted that the restriction imposed by the Plaintiffs’ mother was removed by the Land Registrar 45 days later, after she failed to produce a Court order to retain it on the register. 10.They aver that their father had shown each of their defendants their respective portions of the suit land, and that they formally applied for and obtained consent to subdivide the suit land into 5 portions during their father’s lifetime, with the subdivisions registered in their respective names. 11.Thus, the Defendants stated that they received their respective portions of land as gifts during their father’s lifetime, and consequently, those parcels of land did not form part of their father’s estate at the time of his death. They also questioned the Plaintiffs’ paternity. 12.The hearing of the suit began on April 29, 2019, when PW 1, Agnes Nyaguthii Wanganga, gave her testimony and adopted her witness statement dated May 3, 2018. In her statement, she stated that Gladys Josephine Wanja and Sospeter Kang’eri Karingithi (Deceased) are her biological parents. She further stated that the Defendants fraudulently subdivided the property Magutu/Gatei/312 without consulting the Plaintiffs. As a result, they have been unable to obtain their share of the deceased’s estate. 13.During cross-examination, she stated in court that her birth certificate lists the name of the late Sospeter Karingithi, who did not call them as the Plaintiffs for the distribution of his property. However, she acknowledged that she and the plaintiffs had not attached copies of their birth certificates. 14.Upon re-examination, she stated that their father could not have signed the land control board consents produced because he was very sick, his hands were shaky, and he could not hold a pen. 15.PW 2, James Karingithi, gave his sworn testimony, adopting his witness statement filed on 3rd May 2018, in which he reiterated the contents of the Plaint and PW1’s witness statement, that LR Magutu/Gatei/312, which was his father’s property, was fraudulently subdivided among the 1st -5th defendants, thereby preventing them from obtaining their share of the deceased’s property. 16.Upon re-examination, PW 2 stated that his name, Karingithi, comes from his father’s name, which was also their grandfather’s name. This marked the close of the Plaintiff’s case. 17.DW 1 Julius Karengeri Wanjau adopted his witness statement and the bundle of documents as his evidence in chief. In his witness statement, he stated that he is the firstborn child of the late Sospeter Kangeri Karingithi (Deceased), who was married to their mother, Charity Nyawira Kangeri. He also stated that he had heard that his father had previously married Josephine Gladys Wanja, but that she had separated from him before 1962 and divorced him. 18.That in the year 2002, their late father subdivided his said piece of land on the ground into five (5) equal portions to give to each of his sons. Since they all wanted titles for their respective portions, they requested that their father formalize the subdivision process. A surveyor conducted the survey and prepared a mutation form, which their father signed and submitted to the Land Control Board for consent and a name change, both of which were approved. 19.He denied any collusion between the defendants and the Land Registry officials, stating that the subdivisions were legally completed by their father. 20.DW 1 stated in Court that he did not know the Plaintiffs and that he saw their mother for the first time at their father’s burial. Regarding the subdivision of the suit land, he stated that their father was a learned person in good health who signed all documents himself. He noted that by the time the titles were processed, their father was already deceased. 21.On cross-examination, DW 1 acknowledged that he had heard that the Plaintiffs are their father's children and that the divorce did not cause them to cease being their father's children. He was referred to the Mutation Form dated 11th August 2015, and he noted that it is dated after their father had already passed away. 22.On re-examination, he stated that their father attended the Land Control Board with their brother George Githinji, the 3rd Defendant herein, who lost his voice in 2017. He also stated that before his death, their father could not walk, and that the surveyor, Mr. Mugo, was tasked with carrying out the transfer. 23.DW 2, Stanley Nyamu Kangeria, also gave his testimony, reiterating the contents of their defense and the testimony of DW 1, his brother. He also stated in Court that although transfer forms after subdivision were prepared in 2014, their titles were issued in 2016 because Josephine Wanja, the Plaintiff’s mother, placed a caution on the land. 24.DW 2 noted that their father had alcohol use disorder. His hands shook whenever he had not taken alcohol, but if he took alcohol, his hands became steady, and he was mentally stable. 25.Upon cross-examination, DW 2 stated that the suit land was subdivided in 2014, and their father died on January 26, 2015, having signed the transfer forms. The caution was placed after their father died. 26.Upon being referred to the judgment in the plaintiff’s list of documents, he read that the judgment indicates their father had children with Gladys, whom he acknowledged visited their father when he was ill. However, their father did not bequeath any property to the Plaintiffs. This marked the close of the defense case. 27.Judgment was delivered by the trial court on September 13, 2021, in which the Learned Magistrate found that the Plaintiffs had proven their case on a balance of probabilities and declared that the subdivisions Magutu/Gatei/1582-1586 were illegal and should be canceled, and further ordered that Magutu/Gatei/312 revert to the deceased Sospeter Kangeri Karingithi. The Appellant’s written submissions 28.Counsel for the Appellants submitted that the Trial Magistrate, Lower Court, proceeded to draw up the issues for determination which appear in Paragraph 9 of her judgment. She correctly restated the Law on gift inter vivos in Paragraphs 10,11 and 12 of the Judgment. However, the lower court dismissed the Appellants' claim that the gift was complete. According to them, the trial Magistrate based her decision on an erroneous interpretation and understanding of the Mutation Forms. 29.To deliver justice and ensure fairness, the Appellants submit that the trial Magistrate should have questioned the witnesses on the dates appearing on the mutation form to enable her to understand the subdivision process, or ordered the Land Registrar or the District Surveyor to come to court and explain the subdivision process to the court and interpret the mutation form for the court. Her misunderstanding of the subdivision process and the mutation form led to a miscarriage of justice. 30.They argue that, contrary to the trial court's finding that the deceased executed the mutation form only 3 months before his death, the deceased signed the mutation form on May 9, 2014 (pages 1 and 2 of the mutation) and immediately applied for consent for subdivision and change of name. 31.Their submission is that the suit property’s subdivisions were gifts inter vivos, relying on section 42 of the Law of Succession Act and several authorities. Under this doctrine, once the donor has done everything to complete the gift, the donee will no longer require the donor to do anything; the gift is complete, whether or not registration has been effected, as held by Gikonyo J. in Estate of Emonchu (2018) eKLR. 32.The Appellants also relied on the authorities in Micheni Aphaxard Nyaga and 2 others v Robert Njue and 2 others (2021) eKLR and in Registered Trustees Anglican Church of Kenya Mbeere Diocese v David Waweru Njoroge [2007] eKLR and prayed that their appeal be allowed. The Respondents’ written submissions 33.Counsel for the Respondents submitted that the discrepancies in dates on the mutation form cannot be dismissed as a mere technicality. Further, the application to the Land Control Board, submitted as evidence by the Appellants, did not bear the deceased's signature. The Appellants also failed to produce any transfer forms to support their claim of an inter vivos gift. 34.It is the Respondents’ submission that a gift in the form of a parcel of land ought to be evidenced by a written memo or a written transfer showing that the land was indeed gifted while the deceased was alive. 35.It is trite law that he who alleges must prove. They cited Section 107 of the Evidence Act, Cap 80 of the Laws of Kenya. They submitted that the Appellants failed to prove that the deceased herein attended the Land Control Board and signed all transfer documents effecting a gift inter vivos before his death, relying on the case of Micheni Aphaxard Nyaga and 2 others v Robert Njue and 2 others (2021) eKLR. 36.Lastly, the Respondents submit on the sixth and seventh grounds that the existence of an application to the land control board that is neither dated nor signed by the deceased, together with inconsistencies in the dates indicated on the mutation form, constitutes evidence of fraud. Moreover, it was not made clear how the restriction imposed by Gladys Josephine Wanja, the Respondents’ mother, had been removed. Thereafter, a subdivision was carried out in respect of the suit property, and it was prayed that the appeal be dismissed with costs. Analysis and determination 37.The Appellants herein are all children of one Sospeter Kangeri Karingithi (Deceased), who they claim gifted them LR. Magutu/Gatei/312, which was subdivided into Land Parcels LR. Numbers Magutu/Gatei/1582/1583/1584/1585/1586 and registered in their respective names. 38.The Respondents herein filed a suit before the trial court, claiming to be children of the deceased who were disinherited of their rightful property, and prayed for the subdivisions to be declared illegal and canceled. The trial court upheld their claim and found that they had proven their case. 39.To re-evaluate the findings of the Trial Court, this appellate Court must examine the evidence presented by the parties, as held in the case of Abok James Odera t/a A.J Odera and Associates v John Patrick Machira t/a Machira and Co. Advocates [2013] e KLR, and summarized as follows:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 40.The Appellants' claim herein is that the suit properties qualified as gifts inter vivos; the Trial Court should not have canceled them to revert to the estate of the Deceased. Gifts inter vivos are contemplated by Section 42(a) of the Law of Succession Act, which provides that:“Where-a.an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; orb.(b)property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.” 41.However, the assessment of gifts inter vivos is reserved for determination by the succession court and not this Court, which is tasked to determine matters related to the environment and title to land. 42.The Appellants herein were accused of fraudulently transferring the suit lands into their names. The Land Registration Act provides at Section 26 that:“The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—(a)on the ground of fraud or misrepresentation to which the person is proved to be a party; or(b)where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 43.Thus, if the process by which a certificate of title is obtained is found to be fraudulently or unprocedurally acquired, the title then becomes defeasible. This position was affirmed and upheld by the apex Court when the Learned Judges of the Supreme Court in Dina Management Ltd v County Government of Mombasa and 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) held as follows:“Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Article 40(6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired.” 44.The Appellants exhibited the letter of consent from the Mathira Land Control Board authorizing the subdivision of LR. Magutu/Gatei/312 into 5 equal portions, signed on the 5th of November 2014, and the mutation form dated 10th August 2015. However, none of these documents indicate that the Deceased intended to transfer the suit parcels to the Appellants herein. The Appellants did not exhibit any transfer forms signed by the Deceased. The Deceased, the original owner, died on the 25th of January 2015, before the suit parcels were transferred to the Appellants herein, whose titles were issued in the year 2016. It is therefore unclear how the Appellants obtained their titles or had them registered in their names. In my view, if an investigation into the root of title does not show that proper procedure in acquisition was followed, that is sufficient evidence of fraud or irregularity, illegality, and the title becomes defeasible. 45.Munyao J. (as he then was) in the case of Hubert L. Martin & 2 Others v Margaret J. Kamar and 5 Others [2016] KEELC 1092 (KLR) found as follows:“The parties to such litigation must always bear in mind that their title is under scrutiny and they need to demonstrate how they got their title starting with its root. No party should take it for granted that simply because they have a title deed or Certificate of Lease, then they have a right over the property. The other party also has a similar document and there is therefore no advantage in hinging one's case solely on the title document that they hold. Every party must show that their title has a good foundation and passed properly to the current title holder. With the nature of case at hand, I will need to embark on investigating the chain of processes that gave rise to the two titles in issue as it is the only way I can determine which of the two titles should be upheld.” 46.Similarly, the Court of Appeal in the case of Munyu Maina v Hiram Gathiha Maina [2013] eKLR expressed thus:“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register. It is our considered view that the respondent did not go this extra mile that is required of him and no evidence was led to rebut the appellant’s testimony.” 47.In my view, the trial court’s judgment is sound because the mutation form, as argued by the Appellants, does not show that the deceased intended to subdivide the suit parcels so they could be registered in the Appellants’ names. There is also no evidence that the suit properties were transferred to the Appellants during the deceased's lifetime; therefore, they do not qualify as inter vivos gifts. 48.In the case of Micheni Aphaxard Nyaga and 2 others v Robert Njue & 2 others [2021] eKLR, the Court explained the concept of a gift vivos. It held as follows:“The characteristics of the gifts inter vivos are that they are made and settled during the lifetime of the deceased and have been identified, awarded and settled for the person to whom it has been given. It is a gift made to a beneficiary when the deceased was alive and is considered when distributing the net intestate estate so that person who received it may be considered as having received his share and may reduce or diminish any entitlement to the net intestate estate.” 49.In the same vein, Gitari J in the case of Gitari (As legal representative of the Late Jediel Gitari Mwathani) v Ciankui [2024] KEHC 13848 (KLR) held as follows on this issue:“Thus, in inter vivos the gift must go to the done absolutely during the lifetime of the donor and short of that the gift is not to be considered as having passed to the done and the property forms part of the estate of the deceased. The test be in the definition and ‘estate’ which is;See Odunga’s digest on Civil Case Law and Procedure (Vol) (III) page 2417 where it stated that, “Generally speaking, the moment in time when the gift takes effect is dependent on the nature of gift, the statutory steps taken by donor to effectuate the gift--------- Equity will not come to the aid of a volunteer, and therefore if a donee needs to get an order from a court of equity in order from a court of equity in order to complete his title he will not get it. If on the other hand the donee has under his control everything necessary to constitute his title completely without any further assistance from equity, then the gift is complete,” “That it is on that principle that in equity, it is held that a gift is complete as soon as the done has done everything that he has to do, that is to say as soon as the donee has within his control all those things necessary to enable him complete his title. Likewise, a gift of registered land becomes effective upon execution and delivery of the transfer and cannot be recalled thereafter even though the done has not been registered as a proprietor.” 50.Consequently, the appeal lacks merit and is hereby dismissed with costs. JUDGMENT DATED, SIGNED, AND DELIVERED AT NYERI THIS 13TH DAY OF MAY 2026.____________________________E. K. MAKORIJUDGEIn the presence of:Mr. Wahome for the AppellantMahugu for the RespondentKendi: Court Assistant