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ELCPartially AllowedNot stated (plaint filed 1 March 2014)· [2015] KEELC 627 (KLR)

Diana Kapeen & 2 others v Caroline Leina Lemomo & another [2015] KEELC 627 (KLR)

Environment and Land Court
11 February 2015
1,605 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that customary trust claims over family land can be filed as a fresh lawsuit, even after succession proceedings are complete.

What this practically means

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Executive summary

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The plaintiffs, siblings and surviving children of Livingstone Koitamet Kapeen, sued their cousins, the children of David Lemomo Kapeen, over the parcel Narok/Cis-Mara/Ololunga/158 measuring 2.8 hectares, which they described as ancestral family land on which they had lived for 44 years and buried their parents. The defendants, relying on a confirmed grant in Nairobi High Court Succession Cause No. 1214 of 2009 and registration of David Lemomo Kapeen in 1980, counterclaimed for exclusive and vacant possession and mesne profits, sought striking out of the plaint for frivolity and material non-disclosure, and raised a preliminary objection on non-compliance with Order 37 Rule 7 and Order 19 Rule 4. The court held that the claim was principally one of customary trust, which may properly be brought by plaint and need not be canvassed in succession proceedings, and found serious issues to be tried. It dismissed the striking-out application and the preliminary objection with costs. On the plaintiffs' injunction application, the court found both sides had strong points best left to trial and determined the matter on a balance of convenience, ordering that the status quo prevailing at the institution of the suit be maintained pending hearing, issuing an inhibition against registration of any disposition, and restraining both parties from selling, charging, leasing or otherwise encumbering the suit land. Costs of the injunction application were made costs in the cause.

Key legal issues

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01

Whether a customary trust claim survives or is barred by finalised succession proceedings

Holding

A customary trust claim may be brought by plaint independently of succession proceedings; the finalisation of Succession Cause No. 1214 of 2009 does not bar the plaintiffs' claim

Reasoning

The defendants argued the matter had already been decided in the succession cause relating to their father's estate. The court disagreed, noting customary trust cases need not be decided within succession causes. However, the court was careful not to pronounce on the merits, only holding that the claim was not frivolous and raised serious issues to be tried.

p. 3
02

Whether the plaint was frivolous, vexatious or disclosed no cause of action

Holding

The plaint disclosed serious issues of customary trust to be tried; striking out was declined

Reasoning

The court held there was substance in the plaintiffs' claims, which could not be termed frivolous or vexatious, and that the alleged non-disclosure of the succession cause did not warrant striking out. It expressly reserved the merits for trial.

p. 3
03

Interim relief in a dispute over ancestral family land with competing claims and counterclaims

Holding

Status quo as at the institution of the suit to be maintained, with an inhibition against dispositions, pending trial

Reasoning

The court declined to assess the relative merits at the interlocutory stage, holding that the balance of convenience favoured preserving the position prevailing when the suit was filed, since the plaintiffs appeared to have been in possession, which is why the defendants issued a notice to vacate. It added an inhibition and mutual restraint against encumbrance.

p. 3

Legal principles established

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  • A claim under customary trust can be made by way of plaint and need not be tabled in succession proceedings
  • Where a prima facie case is not clearly established, an interlocutory application may be determined on a balance of convenience
  • The appropriate interlocutory order where both sides have arguable claims to family land is preservation of the status quo and inhibition of dispositions

Court orders

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  1. 1.The defendants' application to strike out the plaint dismissed with costs
  2. 2.The preliminary objection dismissed with costs
  3. 3.The status quo prevailing at the time the suit was instituted to be maintained pending hearing of the suit
  4. 4.An order of inhibition inhibiting registration of any disposition in the register of the suit land
  5. 5.Neither party to sell, charge, lease or otherwise encumber the suit land
  6. 6.Costs of the plaintiffs' injunction application to be costs in the cause
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Diana Kapeen & 2 others v Caroline Leina Lemomo & another [2015] KEELC 627 (KLR)", Case Analysis (2015). Not stated (plaint filed 1 March 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/627/eng@2015-02-11

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