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ELCDismissed· [2016] KEELC 855 (KLR)

Gachanja Gitau & 2 others v Mwangi Gitau alias Waithaka Gitau [2016] KEELC 855 (KLR)

Environment and Land Court
30 May 2016
LWL N Waithaka
1,277 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Nyeri dismissed a family land trust claim because the plaintiffs waited over 20 years and offered no real proof of a trust.

What this practically means

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Executive summary

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The plaintiffs, siblings of the defendant, sued over parcel No. Loc.11/Gikandu/372 registered in the defendant's name, alleging he holds it in trust for them and himself under the wishes of their deceased father, Gitau Wagerere, who died in 1983. They claimed their father had shown them their respective portions before his death and sought an order compelling the defendant to share the property accordingly. The defendant admitted the land belonged to their father but asserted it was given to him to hold solely, that the father had sub-divided and shared his parcels during his lifetime, and raised the pendency of related disputes, abuse of process and limitation. Three plaintiffs testified in support of their claim. In submissions the plaintiffs relied on Kanyi v. Muthiora, Joseph Githinji Gathiba v. Charles Kingori Gathiba and Njuguna v. Njuguna and Section 28(b) of the Land Registration Act, 2012, arguing customary trust arising from family relationship, registration during demarcation and occupation. The defendant contended the burden of proving trust was not discharged and that kinship alone does not create trust. Waithaka J framed a sole issue: whether the plaintiffs proved the defendant holds the property on their behalf. Observing that the plaintiffs waited over twenty years after being chased from the land before seeking help, and that delay defeats equity, the court held that trust is a factual situation which cannot be implied from kinship, occupation or common ancestry, and that no credible evidence of a trust was adduced. The suit was dismissed with costs to the defendant.

Key legal issues

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01

Whether the defendant holds the suit property in trust for the plaintiffs

Holding

The plaintiffs failed to discharge the burden of proving a customary trust; the claim was dismissed with costs.

Reasoning

The court held that a trust is a factual situation which cannot be implied from mere kinship, occupation or common ancestry. The plaintiffs adduced no credible evidence of the creation of a trust at demarcation. Further, the plaintiffs waited more than 20 years after being chased from the land before seeking assistance, and delay defeats equity, negating the trust claim.

p. 3

Legal principles established

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  • Trust is a factual situation that must be proved by credible evidence and cannot be implied merely from kinship, past occupation or common ancestry.
  • Delay defeats equity; prolonged delay in claiming an interest in land negates an alleged trust.

Court orders

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  1. 1.The plaintiffs' suit is dismissed
  2. 2.Costs of the suit to the defendant

Authorities

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Legislation

  • Land Registration ActSection 28(b)

Cases cited (3)

  • Kanyi v. Muthiora
    (1984) KLR
  • Joseph Githinji Gathiba v. Charles Kingori Gathiba
    (2001) eKLR
  • Njuguna v. Njuguna
    (2008) 1 KLR 889
Jurisdiction invoked
Not stated in the judgment

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, "Gachanja Gitau & 2 others v Mwangi Gitau alias Waithaka Gitau [2016] KEELC 855 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/855/eng@2016-05-30

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