Parents don't need children's consent to sell their property

Justice Silas Munyao during a ruling at the Mombasa High Court in Mombasa County on March 3, 2020. [Kelvin Karani, Standard]

Children have no say in their parents' properties, the High Court has ruled.

In a landmark judgment pitting a father and his two sons, Justice Munyao Sila said that it is unfair for a parent to raise and educate their children only for them to demand property or stop the sale of the same.

Justice Munyao said it is abominable for children who are "nurtured from wobbly and helpless tots to be responsible adults" to harass parents for properties they never contributed to buying.

This is a thankless act, he said.

"It is time that children stopped having a notion, that what belongs to their parents also belongs to them, and that their parents must subdivide land to them in a particular manner," argued Justice Munyao.

The case involves John Ayienda and his sons Jaques Orangi and Donald Bosire.

Ayienda decided to sell his property to Edward Makori and Stephen Amwolma but his two sons dragged the buyers to the lands tribunal, arguing that the patriarch was disposing of their inheritance without their consent.

Orangi and Bosire claimed that their father held the title to the property in their trust.

The suit property is located at West Kitutu and was registered on December 29, 1969. Ayienda split the land and sold the same to Makori and Amwolma.

After hearing the rival arguments, the tribunal ruled in favour of Ayienda's sons and cancelled the two titles of the new owners.

Aggrieved, Makori and Amwolma moved to the High Court, arguing that the tribunal never heard them before revoking the titles. They asked the court to reverse the tribunal's orders.

Orangi and Bosire filed a countercase. They argued that the contested land was ancestral land.

Ayienda never filed any response to the case.

Makori told the court that he bought the land from Ayienda on June 19, 2012 before the title was cancelled three years later. He lamented that he was an innocent buyer who knew nothing about the intrigues between the seller and his two sons.

The court heard that when Ayienda was selling the land, his wife Teresa Kemuma accompanied him to sign the sale agreement.

Amwolma told the court that he lives in Lamu and is a driver. The man said he bought the property at Sh3 million.

The court heard that Ayienda, Kemuma and their other sons John Nyakundi and Eric Mayaka signed the transfer documents.

Amwolma told court that he only came to know that his title had been cancelled but did not participate in the tribunal.

Orangi also testified in the case. He told the judge that he is 53 years and a teacher. According to him, the entire property was 15.5 acres.

He said his father did not buy the land but got it from his grandfather during adjudication. His father got his title in 1969.

Orangi stated that he grew up on this land and that there were two huts, one for his mother, and the other for his stepmother.

He claimed that the land was subdivided almost equally to his mother, his stepmother and his father. He added that following Gusii custom, when a father is apportioning land, he usually leaves one portion for himself, referred to as "emonga".

Justice Munyao said that the man might have opted to sell the property due to harassment by his sons.

"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 buy their own property?" Justice Munyao paused.

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