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ELCPartially AllowedCivil Suit No 201 of 2012· [2017] KEELC 1653 (KLR)

Rose Gacheri M’arimi v Gedion M’ikunyua Arimi [2017] KEELC 1653 (KLR)

Environment and Land Court
21 September 2017
LML.N. Mbugua
2,039 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court gave a sister two family land parcels after finding her brother held them in customary trust based on her lifetime of living and farming there.

What this practically means

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Executive summary

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The plaintiff, sister of the defendant and daughter of the same father by a different mother, sued for a declaration that the defendant held the original land parcel NTHAMBIRI/IGOKI/209 in customary trust for her in equal shares, alleging that their father caused the family land to be registered in the defendant's name during demarcation and adjudication, and that the defendant's subsequent subdivision into parcels 668-672 and alienation of parcel 668 to John Gachau Ikunyua breached that trust. She sought cancellation of the subdivisions, restoration of the original title, an equal division, and transfer of half to her. The defendant claimed he had purchased the land from a third party in the 1940s and that he had already allotted the plaintiff parcel 668 per clan customary law. The court framed two issues: whether parcel 209 was ancestral land and whether the defendant held it in trust for the plaintiff. It found the defendant's purchase story unproven (hearsay from witnesses not present at the alleged purchase) and, on implied evidence including the defendant's own admission, concluded the land was ancestral. Relying on Mbui Mukangu v Gerald Mutwiri Mbui and the line of authority holding that a trust can arise from possession and occupation, it held that the plaintiff, born and raised on the land, held equitable rights binding on the registered owner. However, the court declined to cancel all titles and restore the original parcel, finding the plaintiff's case on ancestral character weak and anchoring her rights on possession of parcels 668 and 671. It declared the plaintiff entitled to parcel 668 (0.40 ha) and parcel 671 (0.20 ha), ordered cancellation of the respective titles and their registration in her name, lifted the caution on parcel 671, allowed two months for harvesting crops and removing structures, and directed each party to bear their own costs. The suit therefore partially succeeded.

Key legal issues

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01

Whether the original parcel No. 209 was ancestral land

Holding

The court concluded that land No. 209 was ancestral land on implied evidence, absent proof of purchase by the defendant or sale by plaintiff's family

Reasoning

The plaintiff gave no direct evidence why her father registered the land in the defendant's name, and the defendant's claim of purchase in the 1940s rested on hearsay evidence from DW3, who was not born then, and DW2 who did not reside at Thimbiri during demarcation. The defendant's own admission that his father had land, and DW2's evidence identifying the suit land as M'Mukiki's land, supplied implied evidence of ancestry. The court thus found a customary trust impliedly existed.

p. 3
02

Whether the defendant holds the land in trust for the plaintiff

Holding

The defendant holds part of the land in trust for the plaintiff, her equitable rights resting on her long possession, occupation and cultivation

Reasoning

The plaintiff was born, raised and is raising her own children on the suit land. The court distinguished the authority cited by the defendant, which involved a purchaser with documentary evidence. The defendant's own conduct - subdividing the land into five portions and transferring parcel 668 to John Gachau Ikunyua - was a deliberate attempt to subvert the plaintiff's interest after she staked a customary claim, warranting cancellation of the affected titles.

p. 4

Legal principles established

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  • Customary law trust is proved by leading evidence on the history of the suit property
  • A trust in land can arise from possession and occupation of the land, and such overriding interests bind the registered owner even without notation on the register

Court orders

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  1. 1.Plaintiff is to get in total 0.60 ha (0.4 ha in parcel No. 668 and 0.2 ha in parcel No. 671), with defendant getting 0.93 ha (0.2 ha in parcel No. 669, 0.4 ha in parcel No. 670 and 0.33 ha in parcel No. 672)
  2. 2.Declaration that plaintiff is entitled to the entire parcel of land No. 668 measuring 0.40 ha
  3. 3.Title for parcel No. 668 to be cancelled from the name of John Gachau Ikunyua and the land registered in the name of Rose Gacheri M'Arimi
  4. 4.Declaration that Plaintiff is entitled to parcel No. 671 measuring 0.20 ha
  5. 5.Title for parcel No. 671 to be cancelled from the name of Gedion M'Ikunyua Arimi and registered in the name of Rose Gacheri M'Arimi
  6. 6.The caution lodged on 30.08.12 in respect of parcel No. 671 is to be lifted forthwith to facilitate the transfer
  7. 7.John Ikunyua and Gedion M'Ikunyua M'Arimi given two months to harvest any crops and remove any structures on parcels No. 668 and 671
  8. 8.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Registered Land Act (now repealed)Section 30(g)
  • Registered Land Act (now repealed)Section 28

Cases cited (5)

  • Peter Moturi V Elimelds Basweti Matonda & 3 Others
    (2013) E KLR
  • Paul Gathera Kihara Vs Stephen Muchai
    H.C.C.108/2000
  • Mbui Mukangu Vs. Gerald Mutwiri Mbui
    Court of Appeal 281/00 (Nyeri)
  • Alan Kiama vs Ndio Muthunya & Others
    Civil Appeal No. 42/1978
  • Esiroyo v. Esiroyo
    (1973) E.A 388
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim of customary trust in land

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Rose Gacheri M’arimi v Gedion M’ikunyua Arimi [2017] KEELC 1653 (KLR)", Case Analysis (2017). Civil Suit No 201 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1653/eng@2017-09-21

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