My father plans to sell our ancestral land after misrepresenting our mother's consent for another property he jointly owns with her. He forged her signature and National Identity Card despite their separation. He claims the sale is to cover my brother's medical bills, which I know are already managed by insurance. Does our family have any recourse regarding this situation, particularly for the children? What about our mother and both parcels of land?
Property ownership is a fundamental right for all individuals in this country, as enshrined in Article 40 of the Constitution. The issue of land distribution, particularly in the context of parents and children, has been addressed multiple times in the High Court and is well-supported by legal precedent. Furthermore, any land transfer that is found to involve fraudulent processes, intentions, or outcomes is deemed invalid by law. Consequently, if the interest in title acquired through such means is challenged in a properly constituted court, it may be revoked, as the court can only act upon being approached; it does not initiate action on its own. Article 64 of the Constitution defines private land as property that is registered under either a freehold or leasehold arrangement. From the context of the question, it is presumed that the seller of the joint property acted outside the legal boundaries justified by their title. For instance, if your father sold jointly owned land using forged documents that falsely indicated consent from his estranged wife, two issues arise.
First, there is the acknowledgment of a criminal act that facilitates an illegal transaction. According to Section 354 of the Penal Code, forgery is defined as the creation of a false document with the intent to defraud or deceive. In addition, Section 348 presumes an intent to defraud when a false document is created, provided there exists a specific person, whether identified or not, who could potentially be defrauded.
Furthermore, Section 347 elucidates what constitutes a false document, which includes: a document presented as true when it is not; an altered document that appears to have been authorised, thereby intending to change its effect; and a document signed on behalf of another individual without their consent, regardless of whether the name signed is genuine or fictitious.
In the event of an incident involving the sale of jointly owned land, Section 349 is applicable, and if a party is found guilty, they may face imprisonment for up to three years on charges of forgery. However, such a conviction can only be upheld if your mother, as your father's estranged wife, presents the court with irrefutable evidence demonstrating that consent, as outlined in Section 12(1) of the Matrimonial Property Act, was obtained through forged documents. This section stipulates that an estate or interest in any matrimonial property may not be alienated—in any form, whether by way of gift, sale, lease, mortgage, or otherwise—during the duration of a monogamous marriage and without the consent of both spouses.
This argument can be further supported by Section 26 of the Lands Registration Act, allowing her to initiate a lawsuit against her estranged husband and the new owner of the sold land. She would challenge the legitimacy of the title acquired in this transaction, claiming it was obtained through fraud and misrepresentation, thereby seeking the revocation or cancellation of the title to restore it to its original state.
In the case of Zacharia Wambugu Gathimu & Another vs. John Ndungu Maina, 2019 eKLR, the court highlighted that Section 26 safeguards the rights of genuine proprietors from being undermined by third parties. Regarding the right to sell ancestral land, the court made a clear pronouncement. Justice Munyao Sila, presiding over the Kisii Environment and Land Court in the case of Oganga & Another v Orangi & 3 Others [2023] KEELC 16348 , ruled that there is no legal provision that grants children the right to compel their parents to consult them when managing land that is exclusively registered in the parents' names. The learned Judge referenced Section 24(a) of the Land Registration Act of 2012, which empowers property owners to exercise complete discretion over their land.
In his arguments justifying this decision, Justice Munyao commented, "It is time that children abandoned the 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 further addressed the concept of holding land in trust, which he deemed the minimum requirement for anyone seeking protection over ancestral land.
Ultimately, he concluded that the defendants (the children) could not overturn their father's sale, as he did not hold the property in trust for them. Given the court's stance, it may be advisable to pursue alternative dispute resolution mechanisms, as articulated in Article 159 Clause (2) paragraph (c).
