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ELCPartially AllowedNot stated in judgment (Meru ELC suit filed 18.03.2002)· [2017] KEELC 801 (KLR)

James M'Ngaruthi M' Rintari & another v Muguna M’Rintari [2017] KEELC 801 (KLR)

Environment and Land Court
22 November 2017
2,317 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that land registered in one brother's name was held under customary trust, ordering 7 acres transferred to his sibling.

What this practically means

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Executive summary

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This first-instance judgment of the Environment and Land Court at Meru, delivered by L. N. Mbugua, ELC Judge, on 22 November 2017, resolves a customary trust claim filed on 18 March 2002 between brothers over parcel Kibirichia/501 measuring 20.8 acres. The Second Plaintiff's suit had abated, with the defendant awarded half costs against his estate's legal representative. The court framed three issues: the impact of earlier H.C.C. No. 25 of 1990 (which it could not assess since neither party availed the proceedings or order, so it proceeded as a fresh matter); limitation (answered by an order of 05.03.02 permitting filing within 14 days, and by authority that limitation does not apply to customary-law trusts); and whether the land was ancestral land held in trust. On the evidence, both parties traced the family to Kithirune, where the family had lost its land; their father Rintari was dead, women could not then be registered, and the brothers were away working. The defence itself acknowledged a clan committee that vetted and recommended allocations. The court found the land was allocated clan-based to the defendant on behalf of his family, creating a customary trust which, under section 28 of the Land Registration Act, is an overriding interest on registered land. The court declared the plaintiff entitled to 7 acres of the parcel, ordered its transfer to him, and directed that each party bear their own costs, preserving the earlier half-costs award against the deceased plaintiff's legal representatives.

Key legal issues

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01

Effect of prior suit H.C.C. No. 25 of 1990

Holding

The court could not determine the circumstances in which the earlier suit ended, as no proceedings or orders were availed, and therefore proceeded to determine the present case as a fresh matter

Reasoning

Neither party availed the proceedings or order terminating H.C.C. No. 25 of 1990; the pleadings conflicted on whether it was struck out or dismissed for want of prosecution; and the case was not mentioned at trial. The court thus treated the present suit as a fresh matter without applying res judicata.

p. 3
02

Limitation of action

Holding

The suit was filed within a court-ordered extension of time, and in any event limitation does not apply to customary-law trusts

Reasoning

The suit was filed on 18.03.02 pursuant to an order of 05.03.02 allowing filing within 14 days. Further, relying on Court of Appeal authority, limitation provisions do not apply to customary trusts, under which land is held in trust even for decades.

p. 3
03

Whether the suit land is ancestral/subject to customary trust

Holding

The clan allocated the land to the defendant on behalf of his family because their father was dead, the mother could not be registered as a woman, and the brothers were away; the defendant therefore holds 7 acres in trust for the plaintiff

Reasoning

Both sides traced the family to Kithirune, where the family lost its land. The defence itself acknowledged the clan committee vetting and recommending allocations. The plausible conclusion was that registration of the defendant was on behalf of the family, creating a customary trust protected under section 28 of the Land Registration Act.

p. 4

Legal principles established

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  • Limitation under the Limitation of Actions Act does not apply to a trust arising under customary law
  • Trusts, including customary trusts, are overriding interests binding on registered land even where not noted on the register

Court orders

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  1. 1.It is hereby declared that plaintiff is entitled to 7 acres of land from parcel No. KIBIRICHIA /KIBIRICHIA/501
  2. 2.An order is hereby issued for the transfer of 7 acres of land to the plaintiff from parcel no. KIBIRICHIA /KIBIRICHIA/501
  3. 3.Each party to bear their own costs of the suit, but the defendant is still entitled to half costs as earlier ordered against the legal representatives of the deceased Second Plaintiff

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22)Section 20(2); Section 20(1)(b)
  • Registered Lands Act (Cap 300) (now repealed)Section 28
  • Land Registration ActSection 28

Cases cited (5)

  • MACHARIA KIHARI VS NGIGI KIHARI
    Civil Appeal No. 170 of 1993
  • STEPHENS & 6 OTHERS VS STEPHENS & ANOTHER
    Civil Appeal No. 18 of 1987
  • Samuel Gichina Muiruri Vs. Evanson Kimemia
    Civil Appeal No. 65 of 02
  • Peter Gitonga V. Francis Maingi M'Kiara
    H.C.C. No. 146 of 2000 (Meru)
  • Mumo vs. Makau
    (2002) IEA 170
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim of customary trust on registered land (suit filed 2002 in the High Court, heard before the ELC); no specific constitutional provision invoked

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, "James M'Ngaruthi M' Rintari & another v Muguna M’Rintari [2017] KEELC 801 (KLR)", Case Analysis (2017). Not stated in judgment (Meru ELC suit filed 18.03.2002). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/801/eng@2017-11-22

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