Recently, Justice Munyao Sila of the Environmental and Land Court made a landmark judgement in Oganga & another v Orangi & 3 others (Environment & Land Case 466 of 2015) [2023] KEELC 16348 (KLR) (22 March 2023), granting parents the liberty to sell their land or property without consulting their children. This precedent-setting judgment ended an eight-year protracted land dispute pitting a parent and two buyers on one side and his two sons on the other.
Facts and Background of the Case
In the case, the 1st defendant (father) was the registered owner of a parcel known as West Kitutu/Mwakibagendi/1395(hereinafter described as the suit property) which he subdivided into four plots in 2010 and sold them off to the plaintiffs (buyers). Unknown to the buyers, the 2nd & 3rd defendants (the sons) filed proceedings against their father before the Marani Land Disputes Tribunal claiming that suit property was ancestral land. The Tribunal proceeded to cancel the buyers’ titles and effectively reverted ownership of the land back to the 1st defendant (their father).
Aggrieved by the Tribunal’s decision, the buyers (the plaintiffs in this case) filed the current suit in the Environment and Land Court at Kisii seeking that the decision of the Marani Land Disputes Tribunal be declared illegal, unlawful, improper and unconstitutional and a permanent injunction be issued restraining the defendants from interfering with their titles.
The Issues for Determination
The following issues were outlined by the Honourable Court for determination:
- Whether the decision of the Land Disputes Tribunal should be declared illegal and null and void
- Whether it should be declared that the 1st defendant held title on his own behalf and as trustee for his two families.
- Whether the 1st defendant’s sale of the land ought to be declared null and void.
- Whether the titles of the plaintiffs should be upheld or whether the land should be allowed to revert back to the original parcel No. 1395 and be subjected to a succession process.
Analysis and Determination
Issue 1: Whether the decision of the Land Disputes Tribunal should be declared illegal and null and void.
The Court held that the Tribunal had no jurisdiction to hear the matter as it was only empowered to hear disputes over division and determination of boundaries, claims to occupy or work land and trespass to land as per Section 3 (3) of the Land Disputes Tribunal Act, Cap 303A (repealed in 2011 by the Environment and Land Court Act). Further, the Tribunal erred in the rules of fair hearing by proceeding to hear and determine the matter without the buyers being parties to the suit. Therefore, the Court declared the ruling by the Marani Land Disputes Tribunal null and void.
Issue 2: Whether it should be declared that the 1st defendant held title on his own behalf and as trustee for his two families.
The contention of the sons was that the suit property was ancestral land. However, they were unable to sufficiently prove to the Court that their grandfather bequeathed the suit property to their father to hold it in trust for his two families. While affirming the case of Jackson Mwiti M’Rinyiru vs Silas M’Rinyiru Mbui (2020) eKLR, the Court held that “….The 2nd and 3rd defendants(sons) have failed to provide sufficient evidence to lead this court to the conclusion that this was land that was donated to the 1st defendant(father) from his father with the expectation that he would continuously donate it to his descendants. It follows that we cannot impute any ancestral or customary trust over the land. What the register shows is that this was land that was held exclusively by the 1st defendant meaning that he could deal with it as he wished.”
Issue 3: Whether the 1st defendant’s sale of the land ought to be declared null and void.
The sons argued that since suit property was ancestral land, they should have been consulted before their father sold it to third parties. However, Justice Munyao while disapproving the sons’ argument held that “…no ancestral rights had been proven by the sons, there was no overriding interest in the land, meaning that their father could freely deal with the property as he wished….It is time that children stopped having the notion, that what belongs to their parents also belongs to them in equal measure, and that their parents must subdivide and distribute land to them in a particular manner. In this case, the 2nd and 3rd defendants, children of the registered proprietor, attempted to bully and cajole their father to distribute his land in a way that they themselves wanted.”
Issue 4: Whether the titles of the plaintiffs should be upheld or whether the land should be allowed to revert back to the original parcel No. 1395 and be subjected to a succession process.
The Court declared the buyers as the rightful proprietors of parcel No. 1395(the suit property) having legally bought it from the 1st defendant (father). The 2nd and 3rd defendants (sons) had failed to prove their case. As such, the Court issued a permanent injunction restraining the sons from entering, using or interfering with the quiet possession of the plaintiffs(buyers).
In conclusion, Justice Munyao Sila held as follows: “The conduct of the 2nd and 3rd defendants(sons) was, and remains, shameful. It is abominable. They relentlessly hounded their father; they demanded that he distributes the land in the form that they themselves wanted; even when their father gave them some land, they complained that it was too little; they sued their father before the Chief, the clan, and before the Tribunal; they failed to give their father peace…. They are thankless. They have forgotten that their father took care of them when they were wobbly and helpless tots and raised them to be responsible adults. The 2nd defendant is a teacher. He can fend for himself. So too the 3rd defendant. I wonder why they were harassing their father over his own property. Why couldn’t they use their knowledge, wisdom and economic empowerment to go and find their own property? Maybe if the 2nd and 3rd defendants had left the old man in peace, and endeavoured to cultivate and nurture a good relationship with him instead of harassing him, he would have opted not to sell the land and leave it for them to inherit upon his demise.”
Written by Cynthia Kitolo
Legal Officer & Advocate of the High Court of Kenya
