Cathrine Karimi Gichobi & 2 others v Josphat Gichobi Kibicho [2017] KEELC 2527 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the preliminary objection that the suit discloses no cause of action was competent
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
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.
Whether the Marigi line of authority bars children from claiming a trust in their father's lifetime
Marigi has been distinguished by Mbui Mukangu; whether the suit land is ancestral land held in trust is a matter for trial evidence
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.
Legal principles established
#- 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
#- 1.The defendant's preliminary objection is dismissed
- 2.Costs of the preliminary objection awarded to the plaintiffs
- Jurisdiction invoked
- Original civil jurisdiction of the High Court over the claim founded on trust
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.