Kenya: Man Loses Attempt to Stop Mother From Using Family Land

A man has lost an attempt to block his elderly stepmother from dealing with a disputed piece of land in Limuru, almost three decades after she acquired it.

In a protracted land case, the appellate court on Monday declined Mr Francis Manyara's request to stop Ms Lucia Wairimu from using the land in question pending the hearing and determination of his appeal.

In the trial court, Mr Manyara had claimed that Ms Wairimu duped his father with food and caused him to transfer a property in Limuru to her as a gift.

He said the transfer, which happened on April 2, 1990, denied him his share of the suit property measuring 4.7 acres.

The father, Manyara Wairagi, was at the time suffering from a mental illness and was 94 years old. The old man died six months after transferring the land. Wairagi had four wives and Ms Wairimu was the youngest while Mr Manyara is the son of the first wife.

On October 12, 1990, less than a month after his father's death, Mr Manyara registered a caution against the title of the suit property claiming beneficial interest.

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Loopholes

In his appeal, Mr Manyara is fighting a decision of the Environment and Lands Court to dismiss his case on grounds that it was his father who was supposed to declare that he was duped not him.

During cross-examination, Mr Manyara said that when his father was sick and was being taken to hospital, the stepmother allegedly forced him to put his thumb on the instrument of transfer.

Mr Manyara claimed that his father was threatened by the stepmother that unless he signed the document, he would be denied food.

However, he did not tell the court how he came about this information. The court was not told whether Mr Manyara accompanied his father to hospital and that he was privy to his communication with the stepmother.

"Secondly, even if is assumed that Wairimu had threatened to deny Wairagi food unless he transferred the suit property to her, that in my view did not amount to false pretense. The onus was upon Mr Manyara to prove that Wairimu acquired the suit property fraudulently through misrepresentation," ruled the trial court.

Mr Manyara is also challenging the High Court's finding that his claim for the land was time barred, having been filed in 2014 while the disputed transfer happened in 1990. According to Limitation of Actions Act, he was required to lay the claim and sue within 12 years.

Mr Manyara filed the claim in 2014, about 24 years after the alleged fraud.

In the judgment dated October 22, 2020, Justice Samuel Okongo had also ordered that a Caution that Mr Manyara had lodged against the suit property on October 12, 1990 be lifted by the Land Registrar.

"The suit property belonged to Wairagi and not to Mr Manyara. It is Wairagi who is alleged to have been defrauded of the suit property. It follows therefore that Mr Manyara who is not a legal representative of Wairagi had no locus standi to bring a suit for a wrong done to him (Wairagi)," ruled the trial court in dismissing Mr Manyara's claim.

The ruling

Pending the hearing and determination of his appeal, in which he argues that the trial judge disregarded his evidence in violation of the rules of natural justice, Mr Manyara wanted the appellate judges to stop execution of the judgment.

But Justices Roselyne Nambuye, Hannah Okwengu and Jamilla Mohammed declined the request, saying the elderly woman would be prejudiced in being restricted from enjoying the fruits of the judgment entered in her favour.

Though they noted that there was no evidence laid before the court to show that the order lifting the caution has not been effected, an order of stay of execution regarding the caution will have the undesirable effect of maintaining a caution that has been in effect against the suit property for over 29 years.

"A party who has been indolent in pursuing his/her litigation can only blame himself/herself, if the subject of his/her litigation is compromised due to his/her inordinate delay. Moreover, Manyara has not demonstrated that Wairimu intends to dispose of the suit property or deal with it in a way that may change the character of the suit property,' ruled the judges.

Moreover, they said the intended grounds of appeal are quite general, and do not raise any issue regarding the allegations of fraud. On whether the appeal is arguable, the judges said Mr Manyara is unlikely to overcome the hurdle in relation to limitation brought about by Section 7 of the Limitation of Actions Act.

To get an order of stay, he was required to demonstrate that he has an arguable appeal and if successful, the appeal would be rendered nugatory if the order of stay is not granted.

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