Julius Wachira Maina & 2 others v Christopher Murathe Muraguri [2017] KEELC 3653 (KLR)

The defendant argued that granting the orders would amount to setting aside orders made by a judge of concurrent jurisdiction in Nakuru HC Succession Cause No. 34 of 1990, relying on George Wambugu Ngunjiri v Eunice Nyaitaha. The court distinguished that case because the plaintiffs there did not claim a trust. The court found no evidence that the trust question was considered in the succession cause, so its determination of the trust did not impugn the succession orders.

The defendant, relying on Section 20(2) of the Limitation of Actions Act and George Wambugu Ngunjiri v Eunice Nyaitaha, argued the claim was statute barred. The court adopted its own decision in Peter Muriithi Gichohi v Richard Wambugu Gichohi and, through it, Michael Gachoki Gicheru v Joseph Karobia Gicheru and Stephens v Stephens, holding that an action by a beneficiary under a trust to recover trust property converted by the trustee is not time barred.

The court relied on uncontroverted facts: the parties' grandfather owned Githi/Igana/11 and Githi/Igana/12 and had five sons including both fathers; the plaintiffs had used and occupied the suit property for over 50 years; the parties appeared to agree the plaintiffs were entitled to a portion, differing only on size. On these facts the court found the trust established and allowed the claim in terms of prayers (a), (b) and (c).