Angaya & another v Alukwe

3. Dissatised with the trial court's decision, the appellants led the present appeal based on the following grounds of appeal as captured in the Memorandum of Appeal that: a. The learned trial Judge erred in law and fact in entertaining and allowing the respondent's claim for 1.5 acres which was not properly pleaded as a counterclaim, as it only appeared in the prayers of the defence. b. The learned trial Judge erred in law and fact in her nding regarding the respondent's settlement on the suit land. c. The learned trial Judge erred by failing to appreciate and resolve glaring contradictions in the evidence of the respondent's witnesses (DW2 and DW3). d. The learned trial Judge erred in law and fact by relying on a forged Will in reaching her decision. 4. When the matter came up for hearing before us on 4th May 2026, learned counsel Ms. Omar appeared for the appellants, while learned counsel for the respondent failed to appear on the virtual platform and had not led written submissions. Ms. Omar relied on the appellants’ written submissions dated 13th May 2025 to highlight the grounds of appeal. 5. Before addressing the substantive issues, it is necessary to dispose of certain grounds that were conceded during the hearing. On ground 2, which challenged the trial court's nding on the respondent's settlement of the suit land, counsel conceded that the appellants' joint written witness statement, a brief four-paragraph adavit, did not cover this ground. Concerning ground 3 on the alleged contradictions in the evidence of DW2 and DW3, counsel conceded that this ground was eectively abandoned as it was not particularized in the written submissions. 6. Regarding ground 4 on the alleged forged Will, Ms. Omar submitted that the Will was not produced because the appellants had objected to it; the document was alleged to have been drawn by an advocate, yet the witnesses testied that it was a handwritten document by an Assistant Chief. However, counsel expressly conceded that the impugned Will did not form part of the trial judge’s reasoning for the nal decision. The record conrms that the trial court sustained the appellants' objection and excluded the document from evidence. Consequently, grounds 2, 3, and 4 were conceded or abandoned and cannot form the basis of issues for our determination. 7. On the outstanding Ground 1 regarding the counterclaim, Ms.Omar submitted that it was not properly pleaded as it only appeared in the prayers of the defence, which left the appellants with no proper recourse on how to respond, though she conceded that they did not apply to strike out those prayers at the trial court. 8. Being a rst appeal, we are duty-bound to re-evaluate the evidence that was placed before the trial court and arrive at our own independent conclusions, bearing in mind that we never saw or heard the witnesses testify, as was held in Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123. An appellate court will not normally interfere with concurrent ndings of fact by the trial court unless they are based on no evidence, or are so perverse that no reasonable tribunal could have arrived at them. 9. Having disposed of the conceded and abandoned grounds, we now proceed to draft issues on the outstanding aspects of the appeal that require our determination. From a preliminary reading of the record and submissions, the issues for determination are two: a. Whether the grant of the 1.5 acres was supported by the pleadings and the law. b. Whether the evidence adduced supported the nding of an inter vivos gift. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2078/eng@2026-09-25 2

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10. On the rst issue, we must interrogate the specic part of the defence that claimed the 1.5 acres. A perusal of the record reveals that the body of the defence was a general denial of the appellants' plaint. However, at the tail end of the defence, under the prayers, the respondent specically sought orders that John Nandwa Angaya and Joseph Nyangweso Chapia do give him one and a half acres (1½) from Marama/Shiraha/453, together with costs. The fundamental question is whether a court can grant relief based on a claim tucked only in the prayers of a defence, without a corresponding substantive pleading. 11. The law is strict that a party is bound by its pleadings, and the court can only pronounce judgment on the specic claims and defenses raised, as was emphatically held by the Supreme Court in Independent Electoral and Boundaries Commission vs. Maina Njenga & 2 Others [2019] eKLR. A counterclaim must be pleaded in accordance with Order 7 of the Civil Procedure Rules, setting out the material facts giving rise to the claim. By hiding the claim in the prayers and ling a general denial in the body of the defence, the respondent technically did not plead a counterclaim. The appellants were therefore justied in arguing that they were ambushed, as a general denial put them on notice to only defend the plaint, not to litigate an unpleaded claim for 1.5 acres. 12. While courts generally frown upon departing from pleadings, and the appellants did not apply to strike out the oending prayers at the trial court, the irregularity of the pleading cannot be ignored when evaluating whether the respondent properly proved his case. Therefore, the claim for 1.5 acres was not properly before the court, and the trial court erred in granting relief on an unpleaded counterclaim. 13. On the second issue, we must determine whether the evidence adduced supported the nding of an inter vivos gift. We have re- evaluated the record to see what evidence was actually led to support the unpleaded prayer for 1.5 acres. The appellants' evidence was extremely skeletal. Their entire case was contained in a four-paragraph statement which merely stated that they were the registered owners, that the respondent's father had land elsewhere, and that the respondent should move out. In sharp contrast, the respondent's witnesses, including DW2 (Suge, an uncle), gave elaborate testimony. The evidence led was that the respondent was taken in by Reuben Lubanga to care for him, and that he was shown where to build his house, a fact corroborated by the involvement of a Bishop during the construction. The appellants' bare assertion that the respondent only moved onto the land after Reuben had died and was buried was a mere denial that the trial court was entitled to weigh against the respondent's detailed narrative. Even though the claim was poorly pleaded, evidence was indeed led to substantiate the entitlement to the 1.5 acres. 14. However, the legal crux of this dispute is whether this evidence established a valid and perfected gift inter vivos. The law on gifts inter vivos, as articulated by this Court in Githu vs. Githu [2016] eKLR, requires the proof of three essential elements: rst, the donor must have the legal capacity to make the gift; second, there must be an intention to make a gift (animus donandi); and third, there must be actual delivery of the subject matter of the gift, which must be complete and absolute, leaving the donor with no residual control. If the gift is of land, it must comply with the formalities of the Law of Contract Act and the Land Registration Act, unless it falls under the doctrine of constructive trust or part performance. 15. Looking at the evidence before the trial court, Reuben Lubanga did not hold absolute title to the suit land in his name at the time of the alleged gift; the land was ancestral, and his interest was an undivided equitable share. Reuben showed the respondent where to settle, and the respondent built a permanent house with the knowledge of the family. However, for a gift inter vivos of an interest in land to be perfected, there must be a clear, unequivocal act of delivery. Merely allowing a nephew to settle and build on a portion of undivided family land falls short of the legal requirements of a perfected gift inter https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2078/eng@2026-09-25 3

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vivos of a specic 1.5-acre parcel. Reuben did not execute any transfer, nor did he delineate the 1.5 acres with any certainty during his lifetime to satisfy the requirement of actual delivery of a dened parcel of land. The alleged gift was, at best, a license to occupy and use the land, or an arrangement that gave rise to a constructive trust in favor of the respondent based on his care for Reuben. 16. Because the alleged gift was not legally perfected as a transfer of a distinct 1.5-acre parcel during Reuben's lifetime, the legal title to Reuben's share remained part of his estate upon his death. This brings us to the question of whether the Environment and Land Court was the right forum. In Albert Kariuki Gikonyo vs. Francis Kariuki Mwangi & 3 Others [2016] eKLR, this Court held that where a dispute centers on the estate of a deceased person and the rightful distribution of that estate, the proper forum is the Succession Court, operating under the Law of Succession Act. The ELC only acquires jurisdiction over such land if the Succession Court has expressly delimited the specic shares of the beneciaries. If the 1.5 acres formed part of Reuben's undistributed or improperly distributed estate, the ELC lacked the jurisdiction to rewrite the Succession distributions under the guise of enforcing a gift inter vivos. The trial court therefore erred in treating an unperfected, unpleaded arrangement as a valid gift that extinguished the estate's interest in the 1.5 acres. 17. In the nal analysis, while the appellants' specic grounds of appeal attacking the Will and contradictions fail, the fundamental basis of the trial court's judgment cannot stand. The trial court erroneously elevated an unpleaded prayer and an unperfected occupancy arrangement into a valid gift inter vivos. 18. The Environment and Land Court certainly has jurisdiction to hear and determine claims revolving around inter vivos gifts of land. However, having evaluated the evidence, the alleged gift was never perfected during Reuben Lubanga's lifetime, as there was no clear delineation, transfer, or absolute delivery of the specic 1.5 acres. At best, the respondent held a license to occupy, or an arrangement giving rise to a constructive trust. Because no valid gift inter vivos was perfected, the legal title to the 1.5 acres remained part of Reuben Lubanga's undistributed estate upon his death. Consequently, the ELC lacked the jurisdiction to redistribute the deceased's estate under the guise of enforcing a nonexistent gift inter vivos. 19. Furthermore, the parties were bound by their pleadings, and the general denial in the defence could not transform into a counterclaim for 1.5 acres. The appeal therefore succeeds on the specic grounds that the trial court's grant of 1.5 acres was not supported by evidence of a perfected gift inter vivos, and that the grant was based on an unpleaded claim. 20. We allow the appeal, set aside the judgment of the Environment and Land Court delivered on 22nd June 2021, and substitute it with an order dismissing both the appellant’s plaint and the respondent’s counterclaim. Each party shall bear their own costs of the appeal. 21. Orders accordingly. DATED AND DELIVERED AT KAKAMEGA THIS 25TH OF SEPTEMBER, 2026. P. NYAMWEYA JUDGE OF APPEAL .................................... R. NGETICH JUDGE OF APPEAL .................................... https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2078/eng@2026-09-25 4

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RADIDO S. OKIYO JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2078/eng@2026-09-25 5

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