Catherine Wanjiru Gacheru v Rosemary Wanjiru Wanyoike [2018] KEELC 1165 (KLR)
The bottom line
#A Kenyan court threw out a land trust claim because the buyer had no written, signed sale agreement.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff proved a purchaser's interest in the suit land
No purchase was proved; the acknowledgement of Kshs 163,600/- was not evidence of a contract of sale and referred to 1 acre while the Plaintiff claimed 1.2 acres
The onus lay on the Plaintiff, who asserted the sale. She produced no sale agreement and no witnesses to the alleged purchase. The acknowledgement produced only recorded receipt of monies for one acre, not a contract of sale, and could not support a claim of 1.2 acres. Section 3(3) of the Law of Contract Act bars suits on land dispositions not evidenced by a written, signed and attested contract. Further, any pre-grant sale would amount to intermeddling under Section 45 of the Law of Succession Act.
Whether the Defendant holds the 1.2 acres in trust for the Plaintiff
No trust, whether constructive or customary, was established
A constructive trust could not be inferred because purchase and possession were not proved, and the Macharia Mwangi case relied on by the Plaintiff was distinguishable since it involved valid agreements of sale and undisputed possession. As to customary trust, the Plaintiff led no evidence of the history of the property or the customary law founding the trust as required by Njenga Chogera and Muthuita. There was also no evidence the Defendant is a legal representative of the estate capable of effecting a transfer.
Legal principles established
#- Customary law trust is proved by leading evidence on the history of the suit property and the relevant customary law on which the trust is founded
- No suit shall be brought upon a contract for disposition of an interest in land unless the contract is in writing, signed by all parties and attested by a witness
- A sale of deceased's estate land before grant of representation constitutes intermeddling contrary to Section 45 of the Law of Succession Act
Court orders
#- 1.The Plaintiff's suit is dismissed with costs to the Defendant
- Jurisdiction invoked
- Order 37 Rule 2 of the Civil Procedure Rules (originating summons for determination of trust over land)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Catherine Wanjiru Gacheru v Rosemary Wanjiru Wanyoike [2018] KEELC 1165 (KLR)", Case Analysis (2018). Muran'E&LC No. 91 of 2014 (Origination Summons). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1165/eng@2018-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.