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ELCAllowedOriginating Summons dated 24/10/2016· [2017] KEELC 2436 (KLR)

Anthony Gichanga Waweru v Attorney General [2017] KEELC 2436 (KLR)

Environment and Land Court
11 July 2017
BEB M Eboso
741 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicant, Antony Gichanga Waweru, took out an Originating Summons dated 24/10/2016 under Sections 45 and 47 of the Trustees Act and Order 37 Rule 14 of the Civil Procedure Rules, 2010, seeking a vesting order vesting Land Title Number Dagoretti/Kinoo/878 in him. The Respondent was the Attorney General, who was served but neither opposed the Summons nor attended court. The Applicant deposed that between 1993 and 2014 he lived and worked in the United States of America, during which time he purchased the suit property through his grandmother, Edith Nduta Gichanga. Unable to travel to Kenya to process the transfer, he requested his grandmother to be registered as trustee, and she was so registered. She died on 20/8/2015, and her death was noted on the Land Register at Kiambu County Land Registry. The Applicant relied on his ID card, passport, title deed, official search and the deceased's death certificate. The court found that both the official search and the title deed confirmed the deceased was registered as trustee of the Applicant, and accepted the uncontroverted affidavit evidence. On jurisdiction, the court held that the pre-2010 High Court was the court contemplated under Section 45 of the Trustees Act, but the Constitution of Kenya 2010 vested jurisdiction over title to land in the Environment and Land Court, divesting the High Court under Article 165(5), with Section 33 of the Sixth Schedule making the ELC the legal successor institution. The court held the suit property does not form part of the deceased's estate and granted a vesting order in terms of Prayer 1, with vesting instruments to be executed by the Deputy Registrar, no order as to costs, and the file to be closed upon issuance of the formal decree.

Key legal issues

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01

Jurisdiction of the Environment and Land Court to grant a vesting order under Section 45 of the Trustees Act

Holding

The court held that it has jurisdiction, being the successor to the pre-2010 High Court in land title matters, since the High Court is divested of such jurisdiction under Article 165(5).

Reasoning

The court reasoned that Section 45 of the Trustees Act, in the pre-2010 constitutional framework, contemplated the High Court. The Constitution of Kenya 2010 restructured the Judiciary and vested jurisdiction over title to land in the Environment and Land Court. Article 165(5) divests the High Court of jurisdiction over matters reserved for the Environment and Land Court, and Section 33 of the Sixth Schedule makes the ELC the legal successor to the pre-2010 High Court in title-to-land matters. The court was therefore satisfied it could grant the vesting order.

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02

Whether the suit property forms part of the deceased's estate

Holding

The property does not form part of the estate of Edith Nduta Gichanga because she was registered only as a trustee of the Applicant.

Reasoning

The official search, being an abstract of the Land Register, and the title deed both confirmed that Edith Nduta Gichanga was registered as a trustee of Antony Gichanga Waweru. In the absence of any controverting evidence, the court accepted the Applicant's affidavit evidence and agreed with counsel that a person registered as trustee holds no beneficial interest, so the property does not devolve as part of her estate upon death.

p. 3

Legal principles established

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  • Property registered in a person's name as trustee for another does not form part of that person's estate upon death.
  • The Environment and Land Court is the legal successor institution to the pre-2010 High Court in matters relating to title to land, and may grant vesting orders under Section 45 of the Trustees Act.

Court orders

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  1. 1.A vesting order granted in terms of Prayer 1 of the Originating Summons, vesting Land Title Number Dagoretti/Kinoo/878 in the Applicant
  2. 2.All vesting instruments to be executed by the Deputy Registrar of Milimani Environment and Land Court of Kenya
  3. 3.No order as to costs
  4. 4.Upon issuance of the formal decree, the file to be marked as closed and removed from the list of pending cases

Authorities

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Legislation

  • Trustees ActSections 45 and 47
  • Civil Procedure Rules, 2010Order 37 Rule 14
  • Constitution of Kenya 2010Article 165(5)
  • Constitution of Kenya 2010Section 33 of the Sixth Schedule
Jurisdiction invoked
Sections 45 and 47 of the Trustees Act (Cap 167) and Order 37 Rule 14 of the Civil Procedure Rules, 2010; jurisdiction vested in the Environment and Land Court under Article 165(5) of the Constitution and Section 33 of the Sixth Schedule

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, "Anthony Gichanga Waweru v Attorney General [2017] KEELC 2436 (KLR)", Case Analysis (2017). Originating Summons dated 24/10/2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2436/eng@2017-07-11

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