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Court of AppealDismissedCivil Appeal 76 of 2022· [2024] KECA 1864 (KLR)

Mithamo & another v Mithamo

Court of Appeal
20 December 2024
WKW KaranjaJMJamila MohammedLKL Kimaru
6,276 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that family land held under a customary trust can be claimed even when the trust was never formally pleaded.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nyeri against the judgment of the Environment and Land Court at Kerugoya (Cherono, J.) which had declared that the 1st appellant held the suit property, registered in his name in 1958, in trust for the family of Mithamo Gachungu, and ordered transfer of one acre to the respondent. The appellants argued that the ELC erred in determining an unpleaded issue of trust, since the respondent's originating summons sought only a declaration of adverse possession and estoppel, and that no trust was proved. The Court of Appeal framed two issues: whether the ELC erred in determining the unpleaded trust issue, and whether trust was proved. On the first, the Court held that while trust should be pleaded with particulars, a court may determine an unpleaded issue where it is crucial and both parties addressed it in evidence and submissions, leaving it to the court; here the trust issue featured prominently in the evidence and written submissions, so the ELC did not err. On the second, applying the Supreme Court's five elements in Isack M'inanga Kiebia v Isaaya Theuri M'lintari, the Court found the respondent discharged her burden: the land was clan land, the parties were step-siblings, and the 1st appellant's claim of absolute allocation was contradicted and unsubstantiated. The Court affirmed the ELC findings and dismissed the appeal with costs to the respondent. The judgment binds subordinate courts on the limited exception permitting determination of unpleaded issues.

Key legal issues

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01

Whether a court may determine a suit on an unpleaded issue

Holding

Yes, in limited circumstances where the unpleaded issue is crucial and both parties addressed it in evidence or submissions, leaving it to the court.

Reasoning

The Court traced the doctrine from Odd Jobs v Mubia through Vyas Industries and Nairobi City Council v Thabiti Enterprises, noting Thabiti was distinguishable because there the award was neither pleaded nor sought. Here trust featured prominently in the evidence and written submissions of both parties, so the issue was left to the ELC for determination and the ELC did not err in deciding it.

p. 8
02

Whether a customary trust was proved over the suit property

Holding

Yes; the respondent discharged the burden of proving the trust under the M'inanga Kiebia elements.

Reasoning

The 1st appellant's evidence that he was allocated the land absolutely for his own contributions was contradicted and unsubstantiated by documentary evidence. The respondent called two witnesses with first-hand knowledge of the adjudication showing the land was clan land registered in the 1st appellant's name in trust for the family. The burial of the respondent's mother on the land undermined the licence claim.

p. 10
03

First appeal duties

Holding

A first appellate court must re-evaluate the evidence and reach its own conclusions while allowing for the trial court's advantage of seeing witnesses.

Reasoning

Relying on Selle v Associated Motor Boat Co., the Court restated that an appeal from a trial is by way of retrial: the appellate court must reconsider and evaluate the evidence itself, but is not bound to follow trial findings where the trial judge failed to take account of particular circumstances or probabilities.

Legal principles established

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  • A court may determine an unpleaded issue where both parties addressed it in evidence or submissions and left it for the court's determination.
  • A party who fails to object to unpleaded trust particulars and addresses the issue at hearing is taken to have acquiesced to its determination.
  • Customary trust is an overriding interest on registered land, and its existence must be proved by evidence against the five M'inanga Kiebia elements.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
  2. 2.ELC judgment declaring the appellants hold the suit property in trust for the family including the respondent, and directing transfer and registration of one acre to the respondent, left undisturbed

Authorities

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Legislation

  • Limitation of Actions ActSection 38
  • Evidence ActSections 107, 108, 109
  • Registered Land Act (repealed)Sections 27, 28, 30(g)
  • Land Registration Act, 2012Sections 26, 28(b)
  • Civil Procedure Rules

Cases cited (13)

  • Daniel Otieno Migore v South Nyanza Sugar Co. Ltd
    [2018] eKLR

    Parties are bound by their pleadings; a court cannot grant reliefs not sought.

  • Thomas Muka Mauro & Anor v Robert Ouma Oduori
    [2021] eKLR

    Ingredients of adverse possession (cited by appellants).

  • Kazungu Fono Shutu & Anor v Japhet Noti Charo & Anor
    [2021] eKLR

    A court cannot imply a trust; intention to create a trust must be clearly determined (cited by appellants).

  • Isaak Minanga Kiebia v Isaaya Theuri M'Lintari & Anor
    [2018] eKLR

    Elements of customary trust; claims may emerge through evidence tendered.

  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] eKLR

    Section 38 Limitation of Actions Act - title held in trust for person in adverse possession (cited by respondent).

  • Selle v Associated Motor Boat Co. Limited
    (1968) EA 123

    Duties of a first appellate court on re-evaluation of evidence.

  • Odd Jobs vs Mubia
    [1970] EA 476

    A court may base its decision on an unpleaded issue left to it at trial.

  • Vyas Industries vs Diocese of Meru
    [1976] eKLR

    Applied Odd Jobs v Mubia on unpleaded issues.

  • Nairobi City Council vs Thabiti Enterprises Limited
    [1995-98] 2EA 231

    A judge has no power to decide an unpleaded issue unless pleadings are amended; distinguished.

  • Sheikh vs Sheikh & Others
    [1991] LLR 2219 (CAK)

    Followed in Thabiti Enterprises on unpleaded issues.

  • Sande vs Kenya Cooperative Creameries
    [1992] LLR 314 (CAK)

    Followed in Thabiti Enterprises on unpleaded issues.

  • David Sironga ole Tukai vs Francis Arap Muge & 2 Others
    [2014] eKLR

    Parties are bound by their pleadings; court will not grant unpleaded remedies.

  • G.K. Macharia & Anor vs Lucy N. Mungai
    [1995] eKLR

    A trial court may frame issues on a point not covered by pleadings but arising from facts stated.

On appeal from
Environment and Land Court of Kenya at Kerugoya
ELC Cause No. 120 of 2017
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Constitution Article 164)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Mithamo & another v Mithamo", Case Analysis (2024). Civil Appeal 76 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1864/eng@2024-12-20

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