Parents don’t need children’s consent to sell land – court

Young people who sit pretty hoping to inherit land are in for a rude shock after a judge delivered an earth-shaking judgement allowing parents to sell their land without their children’s consent.

The precedent-setting judgement, that also ended an eight-year protracted land tussle pitting a parent and buyers on one side, and his two children on the other, now gives parents the leeway to do whatever they deem fit with their land.

The judge said children should cease harbouring the notion that whatever belongs to their parents “automatically belongs to them.”

Kisii High Court judge Munyao Sila said parents have the freedom to sell their land without consulting their children.

In his judgment on a suit filed at the Kisii law courts by Edward Makori Ganga and Stephen Amolma Magogo against John Ayienda Orangi, Jacques Orangi Ayienda, Donald Bosire Ayienda and the Attorney General, Justice Munyao ruled that Orangi owned the land and was free to do anything with it.

Jaques and Bosire had sued Ayienda at the Land Disputes Tribunal for subdividing and selling the land in West Kitutu Mwakibagendi/1395 and selling it to Makori and Magogi.

Makori and Magogo were listed as first and second plaintiffs while Ayienda, Jacques, Bosire and Attorney general were listed as first, second, third and fourth defendants respectively.

The case began when two children, Jacques Orangi Ayienda and Donald Bosire Ayienda accused their father, John Ayienda Orangi, of selling their “ancestral land” to Edward Makori Oganga and Stephen Amwolma Magogo.

The Marani Land Disputes Tribunal ruled in favour of Jaques and Bosire and ordered the land revert to Ayienda and be subdivided between his two homes, prompting, Makori and Magogo to reject the Tribunal’s decision as an illegality, null and void and sought to have their titles restored.

The two land buyers filed a suit, arguing the tribunal’s decision was an illegality, null and void and sought to have their titles restored as the children later filed counterclaim suits to assert that their father held the title in their trust as the land was ancestral land.

But on Tuesday, Justice Munyao shocked the children in the judgment that is going to have far reaching ramifications when he said that children should not expect to automatically inherit property owned by their parents.

“The court is persuaded that Ayienda, the first defendant, freely owned the land and was entitled to deal with it as he pleased,” Justice Munyao ruled, noting the children never proved the land was ancestral.

Dismissing Orangi and Bosire’s counter claim, Justice Munyao ruled that no law was cited supporting the contention that children have a right to compel their parents to consult them when dealing with their land.

Right owner

Justice Munyao ordered that Marani Land disputes tribunal’s proceedings and award in Marani land Disputes tribunal case Number 38 of 2011 and the adoption of the award as the decree of the court in the suit Kisii CMCC Miscellaneous Suit Number 115 of 2011 was null and void.

He directed the Kisii Land Registrar to cancel any entry registering the award and decree and maintain the registers of the land parcels West Kitutu/ Mwakibagendi/1395 and West Kitutu/ Mwakibagendi/2858, 2859, 2860 and 2861 as they were before the registration of the award by the tribunal and the decree. The judge ruled that Makori is the right owner of land parcels – West Kitutu Mwakibagendi/2859, 2860 and 2861 while Magogo owns West Kitutu Mwakibagendi /2858.

Justice Munyao gave a permanent injunction restraining the defendants – Orangi, Ayienda and Bosire or their agents from interfering with the owners of the properties – West Kitutu/ Mwakibagendi/2858, 2859,2860 and 2861.

“Orangi and Bosire to pay the costs of the main suit and of the counterclaim to Makori and Magogo in the main suit. There will be no orders to costs for or against the Attorney General.

In his judgment, the Judge noted: “ It is time that children stopped having a 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.”

He noted that in the case of the second and third defendants, children of the registered proprietor attempted to bully and cajole their father to distribute his land in a way they wanted.

“Their father had proposed to subdivide the land to his two wives and leave a portion for himself but this was rejected by the defendants…Orangi and Bosire who thought he was keeping too much land for himself and subdividing too little to his wives.

The Judge noted that from the tribunal’s proceedings, it appeared Ayienda, the first defendant, wanted to keep eight ‘mirabas’ (parcels), and share five to his wives, a move that was rejected by Jacques, Bosire and some clan members who insisted he should give the wives a bigger share.

“The conduct of the second and third defendant was and remains shameful. It is abominable. They relentlessly hounded their father, they demanded that he distributes the land in the form they wanted even when their father gave them some land, they complained it was little, sued him before the chief, clan and tribunal,” noted Justice Munyao.