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ELCDismissedNot stated in the excerpt (plaint filed 11th May 2016)· [2017] KEELC 2527 (KLR)

Cathrine Karimi Gichobi & 2 others v Josphat Gichobi Kibicho [2017] KEELC 2527 (KLR)

High Court of Kenya
31 May 2017
1,425 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court ruled a father's children can argue in court that he holds family ancestral land in trust for them.

What this practically means

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Executive summary

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This is a ruling on a preliminary objection raised by the defendant in a suit brought by his children, who allege that he holds land parcel BARAGWE/GUAMA/2730 in trust for the entire family, the land being a subdivision of ancestral parcel BARAGWE/GUAMA/286 originally allocated to their great-grandfather during land adjudication. The plaintiffs sought a declaration of trust, a permanent injunction against alienation, and an order entitling them to live on and cultivate part of the land. Counsel for the defendant objected that the suit discloses no cause of action, arguing that the plaintiffs are adults, some married, do not live on the land, and cannot compel their father to share his land during his lifetime, relying on Muriuki Marigi and Jackson Riua. Counsel for the plaintiffs invoked Mukisa Biscuit, contending the objection was not a pure point of law since the claim is founded on trust. The court, applying Mukisa Biscuit, Oraro v Mbaja and Mbui Mukangu, held that the objection was blurred with contested factual details and that a good defence cannot be equated with a preliminary objection. It noted that Marigi had been distinguished in Mbui Mukangu, where ancestral registered land is held under intergenerational equity for succeeding generations, and that whether the suit land is ancestral land held in trust is a matter for trial evidence. The preliminary objection was dismissed with costs to the plaintiffs.

Key legal issues

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01

Whether the preliminary objection that the suit discloses no cause of action was competent

Holding

It was incompetent because it rested on contested facts (ages of the plaintiffs, residence on the land, willingness of the father) rather than pure law

Reasoning

Applying Mukisa Biscuit and Oraro v Mbaja, the court held that the matters raised by counsel for the defendant were factual assertions requiring proof, not pure points of law. The Marigi decision may serve as a defence at trial but cannot be equated with a preliminary objection.

p. 2
02

Whether the Marigi line of authority bars children from claiming a trust in their father's lifetime

Holding

Marigi has been distinguished by Mbui Mukangu; whether the suit land is ancestral land held in trust is a matter for trial evidence

Reasoning

The court noted that Marigi concerned a father's own land, whereas Mbui Mukangu concerned ancestral land that devolved on registration under the Registered Land Act, held under intergenerational equity. The applicability of either case depends on facts to be proved at trial.

p. 3

Legal principles established

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  • A preliminary objection must be confined to pure points of law and must not be blurred with contested factual details
  • A good defence is not the same as a proper preliminary objection; a defence may combine law and fact whereas a preliminary objection must be pure law
  • Ancestral land registered after consolidation is held under a concept of intergenerational equity for succeeding generations

Court orders

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  1. 1.The defendant's preliminary objection is dismissed
  2. 2.Costs of the preliminary objection awarded to the plaintiffs

Authorities

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Legislation

  • Registered Land ActNot specified

Cases cited (5)

  • Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd
    1969 E.A 696
  • Oraro vs Mbaja
    2005 1 K.L.R 141
  • Muriuki Marigi vs Richard Marigi Muriuki
    C.A Civil Appeal No. 189 of 1996 (Nyeri) (1997 eKLR)
  • Jackson Riua vs Robert James
    H.C. Civil Appeal No. 29 of 1997 (Embu)
  • Mbui Mukangu vs Gerald Mutwiri Mbui
    C.A Civil Appeal No. 281 of 2000
Jurisdiction invoked
Original civil jurisdiction of the High Court over the claim founded on trust

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, "Cathrine Karimi Gichobi & 2 others v Josphat Gichobi Kibicho [2017] KEELC 2527 (KLR)", Case Analysis (2017). Not stated in the excerpt (plaint filed 11th May 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2527/eng@2017-05-31

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