In a landmark ruling, the High Court of Uganda has reiterated that customary land can be lawfully transferred without a written deed, so long as the donor’s intent, delivery of the land, and lifetime possession by the donee are clearly established.
The decision in the case filed by Ereu Vincent and others underscores the enduring legal force of oral customary land gifts, especially within Uganda’s rural communities where such tenure systems are predominant.
“Once the three essential elements, intention, delivery, and acceptance, are satisfied and the donee has exercised possession during the donor’s lifetime, such a gift is legally binding,” held Justice Musoke Kibuuka.
The court affirmed that oral land gifts under customary tenure do not require formal documentation, distancing itself from imported English legal principles.
Citing the Ugandan Constitution and the Land Act, the judge noted: “Customary tenure is a legally recognized landholding system in Uganda. It is governed by traditions and customs, not by registration formalities.”
This means that individuals can legally receive and retain land without a title deed or written gift agreement, provided community customs and practical possession align.
The case arose from a dispute between Adebo Regina and her husband, Emwodu Augustine (3rd appellant), and their two sons.
Adebo claimed that two gardens of land had been gifted to her by her brother-in-law, Echobu Zedekiya, in the late 1960s.
Having cultivated the land for decades, Adebo sought court protection after her sons, allegedly acting on their father’s instructions, forcibly took over the gardens.
The appellants argued that the land was part of a broader family estate and had been allocated by the 3rd appellant, not gifted by Echobu.
The Magistrate’s Court ruled in favor of Adebo, a decision the sons and husband appealed.
The appeal was based on three grounds: the alleged invalidity of the oral gift, improper evaluation of evidence, and a claimed miscarriage of justice.
But the High Court dismissed all three grounds.
“There is no requirement under Ugandan customary law that a gift of land must be in writing,” the judge ruled.
“The appellants’ reliance on foreign doctrines, such as English common law requiring deeds, is misplaced.”
Justice Kibuuka pointed to the fact that Adebo had cultivated the land openly and exclusively during Echobu’s lifetime, which proved delivery and acceptance.
Further, the appellants failed to show that Echobu lacked authority to gift the land.
“No convincing evidence was adduced to prove that the two gardens were part of the family’s inherited estate. The evidential burden shifted, and the appellants failed to discharge it,” the court said, citing Sections 101 and 103 of the Evidence Act.
In a critical legal reminder, the court cited Paul Kathuni Gichunge v Polycarp Ntwiga & Others [2016] eKLR, emphasizing that: “Any dispute over the validity of a gift inter vivos must be raised during the donor’s lifetime. Posthumous challenges are largely ineffective when the donee has maintained possession.”
The court also questioned the credibility of the appellants’ witness, Akejo Marasalina, the widow of Echobu, who denied the gift.
Her testimony was found inconsistent: “She alleged the land came from three different sources at different times, an account too contradictory to be trusted.”
The court affirmed the judgment of the lower court in favor of Adebo, thereby upholding all the reliefs previously granted.
As a result, Adebo was awarded vacant possession of the disputed land, confirming his legal right to occupy and control the property free from interference by the appellants.
This recognition effectively ends any claim the appellants may have had to the land.
In addition, the court issued a permanent injunction restraining the appellants from further trespassing, encroaching, or interfering in any way with Adebo’s lawful possession and use of the land.
This order ensures that Adebo’s rights are protected going forward and prevents any recurrence of the dispute.
Finally, the court awarded costs of the suit in both the trial and appellate courts to Adebo.
This decision acknowledges the financial burden incurred by Adebo in pursuing justice and seeks to compensate him for the expenses associated with the legal proceedings.
“This court finds no miscarriage of justice. The appeal is dismissed in its entirety,” Justice Kibuuka concluded.
Victim Yet to Speak
Elizabeth Wanjiku Muigai, the complainant, was not present in court, but sources close to the investigation described her as a Nairobi-based businesswoman who had sought international financial backing for a construction project. Her complaint triggered a months-long investigation into what authorities now describe as a “sophisticated financial scam.”
The Directorate of Criminal Investigations (DCI) is said to be pursuing other suspects believed to have been part of the operation, including alleged accomplices based outside the country.
Legal Experts React
Legal observers say the case reflects a growing trend in Kenya’s commercial fraud landscape, where international finance schemes — especially involving trade finance or credit facilities — are being used as bait.
“We’re seeing an uptick in cross-border scams where fake documentation, shell companies, and complex bank transactions are used to defraud unsuspecting entrepreneurs,” said Moses Njoroge, a Nairobi-based criminal lawyer. “It’s crucial that courts treat such cases with the seriousness they deserve.”
If convicted, Odwoma faces up to seven years in prison for each count under the Penal Code, and additional penalties under the anti-money laundering laws.
