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Court of AppealDismissedCivil Appeal (High Court appeal from Resident Magistrate's Court, Kiambu; second appeal to Court of Appeal)

Gichuki v Gichuki [1982] KECA 37 (KLR)

Court of Appeal
23 January 1982
ELE.J.E LawCMC.H.E MillerKPK.D Potter
441 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The appellant, claiming to be 103 years old, sued the respondents, registered proprietors of Limuru/Bibirioni/898, seeking a declaration that a trust entitled him to a one-third share and consequential rectification of the register. Harris J dismissed the suit on two grounds: no evidence of the creation or existence of a trust in the appellant's favour, and res judicata, since the same dispute between the same parties had been decided in Kiambu RM Civil Case No 97/73, where the Resident Magistrate held the respondents to be the proprietors in accordance with the Land Certificate - a decision the learned judge called clearly right. Before the Court of Appeal, the appellant also applied for the dispute to be referred to arbitration by elders. The Court of Appeal (Law, Miller and Potter JJA), in a single judgment, held there was no doubt the judgment below was correct: no trust was proved, and res judicata applied because the prior decision of a court of competent jurisdiction had not been appealed. On the arbitration application, the court held it had no power to refer the dispute, since under Order XLV of the Civil Procedure Rules a reference requires the agreement of all parties - the second respondent did not agree - and must be made before judgment is delivered. The appeal and the application both failed. The court ordered the appeal dismissed with costs and made no order for costs on the arbitration application. Judgment was delivered at Nairobi on 23 January 1982.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether a trust in favour of the appellant was proved over the suit land
  2. 2.Whether the dispute was res judicata by reason of the prior decision in Kiambu RMCC No 97/73
  3. 3.Whether the Court of Appeal could order reference of the dispute to arbitration by elders

Key legal issues

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01

Proof of trust over registered land

Holding

No trust was proved; the registered proprietors' title under the Land Certificate stood

Reasoning

The appellant sought a one-third share by way of trust and rectification of the register. The court agreed with Harris J that there was no evidence of the existence or creation of a trust in the appellant's favour, and endorsed the Resident Magistrate's finding that the respondents were the proprietors in accordance with the Land Certificate as clearly right.

p. 1
02

Res judicata

Holding

The suit was res judicata, the same parties and cause of action having been decided in Kiambu RMCC No 97/73 with no appeal

Reasoning

The first respondent had previously sued the second respondent and the present appellant claiming a three-way division of the same land. The Resident Magistrate decided the respondents were the proprietors per the Land Certificate. That decision was not appealed and bound the parties, barring the present suit.

p. 1
03

Court's power to refer to arbitration on appeal

Holding

The court had no power to refer the dispute to arbitration by elders under Order XLV of the Civil Procedure Rules

Reasoning

The appellant applied for the dispute to be referred to arbitration by elders. Order XLV allows a reference only with the consent of all parties and only before judgment. The second respondent did not consent, and judgment had been delivered, so no order of reference could be made.

p. 1

Legal principles established

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  • A party alleging a trust over registered land must prove its creation or existence; on failure, the registered proprietors' title prevails
  • Res judicata applies where the same parties litigate the same cause of action previously adjudicated by a court of competent jurisdiction and no appeal was brought
  • A reference to arbitration by order of the court requires agreement of all parties and must be made before judgment is delivered

Court orders

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  1. 1.The appeal be dismissed with costs
  2. 2.No order for costs on the application for reference to arbitration

The bench

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One judgment of the whole court — no separate or dissenting opinions.

EL
majority
CM
majority
KP
majority
On appeal from
High Court of Kenya
Jurisdiction invoked
Appeal to the Court of Appeal under the applicable appellate provisions (not expressly stated in the judgment)

Relief refused

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Reference of the dispute to arbitration by elders

Order XLV of the Civil Procedure Rules permits reference only with the agreement of all parties and before judgment is delivered; the second respondent did not agree and judgment had already been delivered

p. 1

Costs

Appeal dismissed with costs; no order for costs on the application for reference to arbitration.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

no trust was proved to have been created or to have existed in favour of the appellant
p. 1Burden of proving a trust over registered land
the dispute between the same parties involving the same cause of action had previously been adjudicated by a court of competent jurisdiction, and no appeal was brought against that decision so that res judicata applied
p. 1Res judicata
a reference to arbitration by order of the court can only be made if all the parties to the suit agree (and the second respondent does not agree) and an order of reference can only be made before judgment in the suit is delivered
p. 1Conditions for reference to arbitration under Order XLV
We make no order for costs on the application for reference to arbitration.
p. 2Final orders - costs
It follows that in our opinion, this appeal and the application for reference to arbitration both fail, and we order that the appeal be dismissed with costs.
p. 1Disposition

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gichuki v Gichuki [1982] KECA 37 (KLR)", Case Analysis (1982). Civil Appeal (High Court appeal from Resident Magistrate's Court, Kiambu; second appeal to Court of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1982/37/eng@1982-01-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.