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ELCDismissedMeru ELC Case (suit filed 7th October, 2011)· [2018] KEELC 632 (KLR)

Diocese of Meru Trustees Registered v Robert Njeru Kamwara & 2 others [2018] KEELC 632 (KLR)

Environment and Land Court
28 November 2018
7,641 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed the Diocese of Meru's land claim because it never objected during adjudication and proved no breach of trust.

What this practically means

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Executive summary

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The Diocese of Meru Trustees Registered sued three defendants seeking declarations that they hold land parcels Nos. S. Tharaka/Tunyai 'B'/578, 409 and 410 in trust for it, rectification of the register, eviction and a permanent injunction. The plaintiff contended the church had been allocated the land in the 1960s, that it was public land set aside for the church and school at Kathigu, and that the defendants fraudulently procured registration in their own names during the adjudication process in breach of trust. The defendants, all clan members, maintained they were duly allocated the parcels by clan elders through the Tunyai 'B' adjudication process, that the adjudication register was inspected and a 60-day objection period ran without any objection from the plaintiff, and that the church and school were in fact allocated alternative parcels (Nos. 318 and 465). The plaintiff's own first witness disowned his statement and testified that the land belonged to the defendants; the other plaintiff witnesses gave contradictory and garbled evidence, and the court found PW4 evasive. The court held that submissions cannot introduce new evidence, that the plaintiff's authority (Peter Kimandiu) was distinguishable because the plaintiff had not objected to the register within the stipulated time, and that the defendants' evidence of allocation through the adjudication process was consistent and unimpeached. Finding no proof of breach of trust or fraud, the court dismissed the suit and awarded costs to the defendants.

Key legal issues

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01

Whether the defendants hold the suit parcels in trust for the plaintiff

Holding

No. The plaintiff failed to prove the trust or the alleged breach of trust on a balance of probabilities.

Reasoning

The court weighed the evidence and found the plaintiff's witnesses contradictory and unreliable: PW1 disowned his statement and testified for the defendants, PW2 gave garbled evidence and was not from the area, PW3 gave contradictory evidence, and PW4 was evasive. The defendants' evidence that they were allocated the land by clan elders through the adjudication process was consistent and unimpeached. No particulars of breach of trust were proved.

p. 12
02

Whether the plaintiff, having not objected to the adjudication register, can litigate ownership in this suit

Holding

No; the plaintiff never lodged objections during the adjudication process, and the registration followed the prescribed process.

Reasoning

The evidence showed the adjudication register was inspected after its close, a 60-day objection period existed, and the plaintiff did not lodge any objection. The court found the authorities proffered by both parties affirmed the necessity for all applicable laws to be diligently followed in adjudication processes, and the plaintiff's authority (Peter Kimandiu) was distinguishable because here the plaintiff had not objected to the register within the stipulated time.

p. 11
03

Whether new evidence may be introduced through written submissions

Holding

No. Submissions highlight issues and authorities but cannot introduce new evidence.

Reasoning

The court observed that while submissions are helpful in highlighting issues and buttressing the litigants' positions, they must not be used to smuggle new evidence into the proceedings. Evidence introduced by way of submissions is not countenanced and is no evidence at all.

p. 11

Legal principles established

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  • Submissions cannot be used to introduce new evidence; such purported evidence cannot be countenanced by the courts.
  • Land adjudication processes must be done strictly in accordance with the applicable laws.
  • A plaintiff alleging breach of trust must prove the particulars of the alleged breach on a balance of probabilities.

Court orders

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  1. 1.The suit is dismissed
  2. 2.Costs follow the event and are awarded to the defendants

Authorities

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Legislation

  • Land Adjudication ActSection 25 (Cap 284)
  • Land Registration ActSection 80(1)
  • Land Consolidation ActCap 283

Cases cited (2)

  • Peter Kimandiu versus Land Adjudication Officer Tigania West and 4 others
    [2016] eKLR; Court of Appeal Nyeri No. 28 of 2015
  • Peter Mugambi Muchee versus Harrison Kirimi
    Chuka ELC Case No. 72 of 2017 (Formerly Meru ELC Case No. 7 of 2013)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim for declaration of trust, rectification of register, eviction and injunction in respect of land parcels S. Tharaka/Tunyai 'B'/578, 409 and 410

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, "Diocese of Meru Trustees Registered v Robert Njeru Kamwara & 2 others [2018] KEELC 632 (KLR)", Case Analysis (2018). Meru ELC Case (suit filed 7th October, 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/632/eng@2018-11-28

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