Tom Ndidi & 8 others v Jackton Ndidi [2018] KEELC 3887 (KLR)
The bottom line
#A Kenyan court dismissed adult children's suit to block their father from selling his own land, ruling a registered owner's property rights outweigh adult children's claims.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the defendant is entitled to the orders he seeks, namely dismissal of the suit and removal of the caution lodged by the 1st plaintiff on land parcel Nyang'ori/Gamalenga/280
Key legal issues
#Whether the defendant is entitled to dismissal of the suit and removal of the caution on parcel Nyang'ori/Gamalenga/280
Yes. The suit seeking to enjoin a registered proprietor from dealing with his own land is an abuse of process and is dismissed; the caution is removed.
The court held that the plaint sought only a permanent injunction against the defendant, the registered owner, from using his own properties. Under Section 25(1) of the Land Registration Act, the proprietor's rights are subject only to the overriding interests in Section 28. The plaintiffs, being adult children over 40 years old and gainfully employed, have no right to interfere with the defendant's enjoyment of his land, which is protected by Article 40(1) of the Constitution. Dismissal was in the interests of justice.
Legal principles established
#- A registered proprietor's rights under Section 25(1) of the Land Registration Act are subject only to the overriding interests in Section 28, and the proprietor is free to deal with his property
- Adult, gainfully employed children have no right to interfere with their parent's enjoyment of the parent's registered land; property rights under Article 40(1) of the Constitution cannot be taken away even by adult children
- A suit by adult children seeking to restrain a registered owner father from dealing with his own land is an abuse of the process of the court
Court orders
#- 1.The suit is dismissed
- 2.The Land Registrar Kakamega is ordered to remove the caution lodged by the 1st plaintiff on land parcel Nyang'ori/Gamalenga/280 forthwith
- 3.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Environment and Land Court jurisdiction over disputes relating to land parcels Nyang'ori/Gamalenga/215, 278, 280 and plot No. 7 Kiboswa market
Relief refused
#Plaintiffs' permanent injunction restraining the defendant from selling, alienating, transferring, subdividing and/or wasting the suit parcels
The prayers in the plaint cannot be granted; adult children have no right to interfere with the registered proprietor's enjoyment of his land
Costs
Each party bears their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I therefore dismiss this suit and order that the land registrar Kakamega do remove the caution lodged by the 1 st plaintiff on the land parcel Nyag'ori/Gamalenga/280 forthwith.
The parties herein are father and his children. I will therefore order that each party bears their own costs.
A registered proprietor is free to use, dispose, transfer, charge and or in any other way deal with his property subject to Sec. 28 aforesaid.
The applicant/defendants rights to own property are guaranteed by article 40(1) of the Constitution. No one can take that away not even his adult children.
Issues in the judgment
#Internal inconsistency in paragraph [4]: the court records 'The case remained for 1st 2nd and 8th defendants' although the suit was brought by plaintiffs against a single defendant; the parties remaining appear to be plaintiffs
The parcel name is spelled inconsistently within the judgment ('Nyang'ori/Gamalenga/280' and 'Nyag'ori/Gamalenga/280')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tom Ndidi & 8 others v Jackton Ndidi [2018] KEELC 3887 (KLR)", Case Analysis (2018). ELC Case of 2015 (Nyang'ori/Gamalenga land parcels - suit filed 5/5/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3887/eng@2018-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.