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ELCDismissedNot stated in the judgment (commenced by plaint filed 7 November 2013)· [2017] KEELC 209 (KLR)

Njenga Kimani & 2 others v Kimani Nganga K. Wainaina [2017] KEELC 209 (KLR)

Environment & Land Court
16 November 2017
MSMunyao Sila
7,356 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~29 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a family land claim because the plaintiffs had no documents proving they paid for the land.

What this practically means

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Executive summary

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The plaintiffs, comprising the 1st plaintiff (Njenga Kimani) and the legal representatives of the estate of Kamau Kimani, sued the defendant claiming that land parcel Naivasha/Mwichiringiri Block 2/1211 was held by him in trust for them. They alleged that in 1964 the 1st plaintiff and his two brothers jointly purchased a share in Nyamathi Farmers Cooperative Society and had it registered in the name of the defendant, who was then a minor, to hold in trust. In the alternative, they claimed title by adverse possession. They sought a trust declaration, a permanent injunction, an order for transfer, and costs. The defendant denied any joint purchase, contending his father alone bought the share and registered it in his name, and that he had merely permitted the 1st plaintiff, his uncle, to reside on the land. The court found the plaintiffs' evidence on who paid the purchase money contradictory, with no receipts or company records produced to prove contribution. The 1985 family agreement was not signed by the trustee-defendant and the alleged Land Control Board consent was not produced. The court held the plaintiffs had not rebutted the presumption that property registered in a child's name is a gift. On adverse possession, the court found the 1st plaintiff's long occupation was permissive, under licence, lacking the requisite animus possidendi, and that more is required for close relatives to establish adverse possession. The 2nd and 3rd plaintiffs were never in possession. The suit was dismissed with costs to the defendant.

Key legal issues

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01

Whether the plaintiffs established a resulting trust over the suit land

Holding

The trust claim failed for want of proof of contribution to the purchase price and failure to rebut the presumption of gift to a child in whose name the property was registered

Reasoning

The plaintiffs' oral evidence on who paid the Kshs. 900/= initial deposit was contradictory and unreconciled between PW-1 and PW-2, and no receipts or company records were produced. The 1985 agreement was unsigned by the trustee-defendant, and the alleged Land Control Board consent was not produced. No special circumstance was shown justifying registration in the name of a 6-month-old child rather than in the names of the adult brothers themselves.

p. 5
02

Whether the 1st plaintiff acquired title by adverse possession

Holding

The claim failed because the 1st plaintiff's possession was permissive, under licence, and lacked animus possidendi

Reasoning

Although the 1st plaintiff was in open possession for over 12 years, the court found the possession was with permission of the defendant, first through the defendant's father and later directly. The defendant disclaimed any intention to evict him. The 2nd and 3rd plaintiffs were never in possession, and PW-4 brought no independent suit. The Court of Appeal's caution against applying adverse possession within close families was adopted.

p. 6

Legal principles established

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  • Proof of contribution to the purchase price is critical for any person relying on a resulting trust
  • When a father buys property and puts it in the name of his child, there is a prima facie presumption of gift, not trust
  • A relative living on another's land, with kin buried there, does not by itself prove a trust
  • Possession under licence from the registered proprietor cannot found a claim in adverse possession
  • Adverse possession claims between close relatives require more than ordinary possession, since relatives commonly live on each other's land

Court orders

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  1. 1.Suit dismissed with costs to the defendant

Authorities

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Cases cited (7)

  • L.N vs SMM
    (2013) eKLR
  • Mbothu & 8 Others vs Waitimu & 11 Others
    (1986) KLR 171
  • Mwambonje vs Mwambonje
    (2014) eKLR
  • Samuel Kihamba vs Mary Mbaisi
    (2015) eKLR
  • Mbui vs Muraya
    (1993) KLR 726
  • Gatimu Kinguru vs Muya Gathangi
    (1976-80) KLR 317
  • Mbui vs Maranya
    (1993) KLR 726
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under the Environment and Land Court Act (not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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, "Njenga Kimani & 2 others v Kimani Nganga K. Wainaina [2017] KEELC 209 (KLR)", Case Analysis (2017). Not stated in the judgment (commenced by plaint filed 7 November 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/209/eng@2017-11-16

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