https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4611

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYERI** **ELCA NO.E030 OF 2022** **SHELMITH GATHONI WAMBUGU…………………...…1ST APPELLANT** **RICHARD MUTURI WAMBUGU………………………...2ND APPELLANT** **VERSUS** **JACOB KIOI WAMBUGU…………………………………1st RESPONDENT** **HUMPHREY MBATIA NJENGA………………………2ND RESPONDENT** ***(An appeal against the judgment delivered in Nyeri CM ELC No. 46 of 2019 by Hon. James Macharia Muriuki on October 18, 2022).*** **JUDGMENT** 1. This is an appeal against the judgment delivered in **Nyeri CM ELC No. 46 of 2019** by Hon. James Macharia Muriuki on October 18, 2022. The Appellants have filed an Amended Memorandum of Appeal dated November 15, 2022, but the date of the amendment is not indicated. The memorandum sets out the grounds of appeal, in summary, that the Learned trial Magistrate erred in law and in fact by abdicating jurisdiction. In contrast, he had jurisdiction to determine the matters at hand. 2. That the Trial Magistrate misapprehended the applicable law and erred in formulating the issues for determination, leading to an incorrect legal conclusion. 3. The Appellants raised an issue that the Trial Court erred in finding that the Defendant was at liberty to voluntarily appropriate the subject land after selling it to the 2nd Plaintiff, thereby dispossessing the 2nd Plaintiff and causing a miscarriage of justice. 4. Further, they raised an issue that the Trial Court failed to consider that the 2nd Appellant pleaded that he was blind and disadvantaged, and that the Defendant outrightly misled him into signing documents that gave away his proprietary rights, thereby sanctioning a constructive breach of trust to the detriment of the 2nd Applicant. 5. The Appellant prays for the following orders: 6. **That the appeal be granted in its entirety.** 7. **It is hereby requested that the judgment rendered by Hon. James Macharia Muriuki, Senior Principal Magistrate, on October 18, 2022, in Nyeri MCL & E No. 49 of 2019, be rescinded and/or modified.** 8. **That the Honorable Court grants any additional or further relief as it may consider necessary.** 9. **That the costs of this appeal be duly provided for.** **Summary of the suit before the Trial Court.** 1. The suit before the Trial Court was instituted by Plaint dated 28th November 2018, in which the Plaintiffs, who are the Appellants herein, averred that LR. No. Naromoru/Block/Ragati/187 was the family land of the parties in this suit, on which the 1st Plaintiff and the 1st Defendant, the parents of the 2nd Plaintiff, had settled after inheriting it. 2. That there had been an attempt by the Defendant to sell the family land before its subdivision, but the attempt was successfully stopped by the 1st Plaintiff. 3. It was averred that, by consent, the family agreed to subdivide the land and share it equally. The land was subdivided into six portions. The 1st portion was sold to cover subdivision expenses, and after approval by the Land Control Board, everyone received their share. The 2nd Plaintiff was allocated LR. No. Naromoru/Block 1/Ragati/1413. 4. However, the 1st Defendant was entrusted with the process of transferring titles to the new ownership, a trust he betrayed by retaining his name on the titles. Some family members pursued him and successfully had their titles registered in their names, but the 2nd Plaintiff did not. 5. It was averred that the 1st Defendant took advantage of the 2nd Plaintiff’s disability, failed to transfer the land to him, and began selling the land to third parties. 6. It was the Plaintiffs’ case that the 1st Defendant’s actions would dispossess the 2nd Plaintiff of his portion and would greatly disadvantage him if permanent orders are not issued. The Plaintiffs prayed for the following orders: 7. **Permanent injunction orders restraining the defendant, their proxies, agents, or any other persons purporting to act under them from transferring, harassing, selling, and/or in any other way interfering with the Plaintiff’s peaceful possession of LR. No. Naromoru/Block 1/Ragati/1413 situated in Nyeri.** 8. **A declaration from the Honorable Court that the 2nd Plaintiff is the bona fide owner of LR. No. Naromoru/Block 1/Ragati/1413, situated in Nyeri.** 9. **An order compelling the Defendant to transfer the property, LR. No. Naromoru/Block 1/Ragati/1413, into the name of the 2nd Plaintiff.** 10. **Costs of the suit.** 11. The Defendant filed his statement of defense, denying that he entered into any such agreement as alleged, averring that he is the absolute registered proprietor of the suit land, LR. NO. Naromoru/Block 1 /Ragati /1413, and denying any legal or equitable obligation to transfer the land to the 2nd Plaintiff. 12. The hearing of the suit began on 9th November 2011, and PW 11, the 1st Plaintiff, adopted her witness statement and bundle of documents as her evidence in chief. In her statement, she reiterated the contents of her Plaint, that they had agreed with the Defendant that the 2nd Plaintiff was to be allocated the suit property herein, known as LR. NO. Naromoru/Block 1 /Ragati /1413, but the Defendant registered the property in his name and failed to transfer it into the 2nd Defendant’s name. She stated to the Court that she would like the 2nd Defendant to be registered as the proprietor thereof, as he has nowhere else to stay. 13. During cross-examination, the 2nd Plaintiff revealed that she no longer lives with the Defendant because he chased her out of their home. She denied knowing that the 2nd Plaintiff was a witness to a sale agreement. 14. PW 1, however, acknowledged that the 2nd Plaintiff was charged in **Criminal Case No.16 of 2014** at the Nanyuki Law Courts. Nevertheless, he denied any knowledge of the Defendant providing surety using the title of the suit property for him in that case. Additionally, PW 1 stated that the 2nd Plaintiff concurred with the Defendant to replace the title with a cash bail of Ksh. 100,000, enabling them to sell the land. PW 1 denied any awareness of these arrangements. 15. PW 2, the 2nd Plaintiff, testified before the Court, which adopted his witness statement. He stated that he has trouble reading and that he was educated at Thika School for the Blind. His witness statement was identical to the 1st Plaintiff's; therefore, there is no need to reproduce it. 16. In Court, PW 2 stated that he signed an agreement for sale and was given a consent form, but the Defendant took the consent form from him to transfer the suit property to him, even though every other family member received a gift from the Defendant. 17. PW 2 added that Ksh.100,000/= was deposited into his account and that the buyer is currently on the suit land. 18. On cross-examination, the Defendant stated that he did have a criminal case in Nanyuki, and that the suit property’s title deed was given as surety. He further stated that he agreed with the Defendant to substitute the title with a cash bail of Ksh.100,000/= to be deposited in his account. 19. Eventually, he acknowledged that he witnessed and signed a sales agreement, confirmed that the identity card number recorded in the agreement is his, and that he attended the Land Control Board. 20. PW 2 also stated that he was forced and threatened into recording his witness statement. 21. Further, PW 2 stated that he believed he was the one to whom the land was given because he signed the sale agreement, and that he did not demand additional money from the Defendant after the transaction, since the Defendant told him he would give him another parcel of land. 22. Joseph Mwangi, Advocate, also gave testimony in court. He stated that he knows the Defendants and the 3rd Plaintiff in the case, that the 1st Defendant was selling the suit property for Kshs.14 million, and that he represented both parties. He confirmed that the purchase price was paid. 23. PW 3 added that he also acknowledged that the 3rd Plaintiff had paid the seller Ksh.150,000/= to facilitate the release of the title deed, which served as security in the criminal case in which the 2nd Plaintiff was the accused person. 24. However, PW 3 stated that the transaction was not completed and that registration was obstructed after a suit was filed and an order of inhibition was issued. Accordingly, he gave a professional undertaking to release the balance of Kshs.3.5 million and the suit title in his custody upon successful transfer. He produced the acknowledgment document and the agreement for sale as exhibits. 25. Humphrey Mbatia Njenga, the 3rd Plaintiff, adopted his witness statement dated 18th March 2019 as his evidence in chief. He stated that, pursuant to a sale agreement dated 2nd August 2017 with the Defendant, he purchased the suit property, LR. NO. Naromoru/Block 1 /Ragati /1413, for a purchase price of Kshs.14 million. 26. He stated that he remitted the entire purchase price, partly to the Defendant and partly to the Advocate, thereby fulfilling his obligation. They attended the Land Control Board on December 14, 2017. He took possession after paying half of the purchase price. 27. He later learned that the 2nd Plaintiff had lodged a caution on the suit title, and he involved him in the sale agreement, which he witnessed, and then removed the caution that he had lodged before proceeding with the agreement for sale. 28. At some point in November 2018, his advocate informed him that an order of inhibition had been registered on the title. The advocate later learned that the 2nd Plaintiff had sued the Defendant regarding the sale, which he states was above board, and that the 2nd Plaintiff seeks an order of specific performance. 29. On cross-examination, he stated that the 2nd Plaintiff was a witness to the sale agreement, was present at the Land Control Board, and did not indicate a desire not to dispose of the property. He also denied that the 2nd Plaintiff is blind. That marked the close of the Plaintiff’s case. 30. DW 1, the Defendant, adopted his witness statement and the bundle of documents as his evidence in chief. In his witness statement, he stated that he sold the suit property, LR. NO. Naromoru/Block 1 /Ragati /1413, to the 3rd Plaintiff and put him in possession thereof, but the 1st and 2nd Plaintiffs frustrated the process by filing a suit against him. 31. He added that he should not be ordered to pay costs because he is not at fault. 32. He stated in Court that he had sat down and agreed with the 2nd Plaintiff to give him another parcel of land, and added that the 2nd Plaintiff was a party to all the land transactions herein. 33. Upon cross-examination, DW 1 confirmed that the 2nd Plaintiff was educated at Thika School for the Blind. He also confirmed that he was with his sons when he attended the Land Control Board and that the 2nd Plaintiff was present at the Advocate’s office, but that his wife, the 1st Plaintiff, was not. 34. He added that the land was his and that it should devolve to the 3rd Plaintiff under the sale agreement. This marked the close of the hearing, after which the parties filed written submissions. 35. Judgment was entered on October 18, 2022. The Trial Court found that the Defendant remained the legal owner of the suit parcel of land and could do with it as he wished, and that the 2nd Plaintiff had no right to frustrate the contract between the Defendant and the 3rd Plaintiff, who were willing to finalize it. 36. The Trial Court, therefore, dismissed the claims of the 1st and 2nd Plaintiffs, ruled in favor of the 3rd Plaintiff, and issued a permanent injunction against the Defendant or any other party from interfering with the 3rd Plaintiff’s quiet possession, use, and occupation of the subject land. Additionally, the Court ordered the removal of the registered inhibition and directed the Land Registrar to permit the parties to proceed with their sale agreement dated 2nd August 2017. This decision is the subject of the appeal filed by the 1st and 2nd Plaintiffs against the Defendant and the 3rd Plaintiff. 37. Parties filed written submissions to the appeal, which the Court has duly read and considered. **Analysis and determination** 1. The role of a first appellate court was succinctly articulated in the case of **Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR**, and was 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.”*** 1. The issues for determination raised herein can be condensed into whether the trial court erred in dismissing the Appellants’ case and in finding in favor of the 2nd Respondent. The suit property herein, LR. NO. Naromoru/Block 1 /Ragati/1413 was registered in the Defendant’s name after the Defendant inherited the mother title. It was the Appellants’ case that this specific subdivision was to be allocated to the 2nd Appellant herein as a gift from his father. They filed an agreement dated 16th May 2011, which shows a rough sketch of how LR. NO. Naromoru/Block /Ragati/187 would be distributed among the 1st Appellant’s and 1st Respondent’s children, as well as themselves. 2. The Appellant alleges that the 1st Respondent failed to fulfill the terms of the agreement and retained the title in his name. Subsequently, it was revealed that he agreed with the 2nd Respondent herein to sell the subject property. 3. From the facts of the case, it is not disputed that the 1st Respondent was the registered owner of the suit property and was expected to gift portions of the suit property to his children, but failed to do so for the land that was agreed to be allocated to the 2nd Appellant. 4. *Inter vivos* gifts are addressed by Section 42(a) of the Law of Succession Act, which provides that: ***“42. Where-(a) an intestate has, during his lifetime or by will paid, given or settled any property for or the benefit of a child, grandchild or house; or taken had he not predeceased the intestate. That property shall be taken into account in determining the share of the set intestate estate finally, accruing to the child grandchild or house.”*** 1. The agreement on which the Appellants relied was not an agreement for the sale or disposition of land but merely a gift. The 1st Respondent relied on the case of **Re Estate of M’Raiji Kithiano (Deceased) [2017] KEHC 1970 (KLR)**, in which the Court cited with approval the finding of Nyamweya J (as she then was) in **Re Estate of The Late Gedion Manthi Nzioka (Deceased) [2015] KEHC 944 (KLR)** as follows: ***“In law, gifts are of two types. There are the gifts made between living persons (gifts inter vivos), and gifts made in contemplation of death (gifts mortis causa). Section 31 of the Law of Succession Act provides as follows with respect to gifts made in contemplation of death:*** ***“A gift made in contemplation of death shall be valid, notwithstanding that there has been no complete transfer of legal title, if-*** ***(a) the person making the gift is at the time contemplating the possibility of death, whether or not expecting death, as the result of a present illness or present or imminent danger; and*** ***(b) a person gives movable property (which includes any debt secured upon movable or immovable property) which he could otherwise dispose of by will; and*** ***(c) there is delivery to the intended beneficiary of possession or the means of possession of the property or of the documents or other evidence of title thereto; and*** ***(d) a person makes a gift in such circumstances as to show that he intended it to revert to him should he survive that illness or danger; and*** ***(e) the person making that gift dies from any cause without having survived that illness or danger; and*** ***(f) the intended beneficiary survives the person who made the gift to him:*** ***Provided that-*** ***no gift made in contemplation of death shall be valid if the death is caused by suicide;*** ***the person making the gift may, at any time before his death, lawfully request its return. the person making the gift may, at any time before his death, lawfully request its return.”*** 1. From the precedent above, it is clear that a gift *inter vivos* is revocable during the donor’s lifetime, provided the gift has not yet been completed. The Appellants have raised the issue that the suit property remained registered in the 1st Respondent’s name. To challenge a registered proprietor’s title, the Land Registration Act Cap 300, under Section 26, provides 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.”*** 1. The Appellants have not presented evidence that the title could have been fraudulently or improperly registered in the 1st Respondent’s name. The 2nd Appellant had no proprietary rights in the suit property to begin with, as the Appellants allege, and therefore could not sign it over. I therefore agree with the Trial Court that the 1st Respondent was free to do as he wished with his property, including entering into the Agreement for the sale of the suit property to the 2nd Respondent. 2. The Agreement for the sale of the suit property between the Respondents, dated 2nd August 2017, appears to be in order and to meet all the criteria for a valid land sale agreement. Notably, the 2nd Appellant was a witness to the agreement, which he acknowledged during the hearing, and stated that his father, the 1st Respondent, had promised to gift him another parcel of land elsewhere. 3. The Court of Appeal, in **Registered Trustees Anglican Church of Kenya Mbeere Diocese v David Waweru Njoroge [2007] KECA 448 (KLR)**, agreed with the Trial Judge, dismissed the appeal, and quoted the Trial Court as follows: ***“Halsbury’ s Laws of England, 4th Edition Volume 20 (1) paragraph 67 where it is stated as follows with respect to incomplete gifts: ‘where a gift rests merely in promise, whether written or oral, or in unfulfilled intention, it is incomplete and imperfect, and the court will not compel the intending donor, or those claiming under him, to complete and perfect it, except in circumstances where the donor’s subsequent conduct gives the donee a right to enforce the promise. If a gift is to be valid the donor must have done everything which according to the nature of the property comprised in the gift, was necessary to be done by him in order to transfer the property and which it was in his power to do.”*** 1. The Donee, who is the 1st Respondent in this case, did not transfer the property to the 2nd Appellant; therefore, the transfer cannot be deemed a valid gift. In my view, the Trial Court did not err in making its finding, and this Appeal is without merit and is hereby dismissed with costs. **Dated, signed, and delivered electronically in Nyeri on this 8th day of July, 2026.** **E. K. MAKORI** **JUDGE** **In the presence of:** **Ms. Njau for the 1st Respondent** **Mr. Kimunya for the 2nd Respondent** **Denis: Court Assistant** **In the absence of:** **The Appellant**