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ELCPartially AllowedELC 135 of 2015· [2018] KEELC 3935 (KLR)

Jecinta Wambura M. Ciero & another v Benson Warui Njanja [2018] KEELC 3935 (KLR)

Environment and Land Court
14 March 2018
2,802 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Two sisters won one acre each from land registered in their brother's name, because courts recognize family land trusts even without the owner's name on documents.

What this practically means

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Executive summary

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Two sisters sued their brother, the registered proprietor of land parcel No. KABARE/NYANGATI/3937 (measuring 3.24 Ha), seeking a declaration that he holds it in trust for himself and them, and an order that each plaintiff receive one acre. The suit land was a sub-division of their late father Njanja Kabiru's parcel KABARE/NYANGATI/270. After a burial dispute over their mother Jane Kanini, the defendant obtained an award from the Central Division Land Disputes Tribunal Case No. 5 of 2001, adopted by the Kerugoya Principal Magistrate's Court, awarding him eight acres as his late mother's share. The defendant denied any trust, asserting exclusive ownership. The court first disposed of the objections raised in the defendant's submissions: the suit is not statute barred because Section 20(1) of the Limitation of Actions Act excludes trust claims, citing Stephens v Stephens; res judicata fails because the Tribunal had no jurisdiction over trust, per Lelei; and abuse of process was unsupported by evidence. On the merits, the court held that a trust is never presumed (Mbothu v Waitimu), but the evidence established one: the land was awarded to the defendant as his mother's house share, under Kikuyu Customary Law he was the recognized trustee (MURAMATI), and registration does not relieve a trustee (Mumo v Makau). His violence towards the plaintiffs, for which he was convicted, and their marital status could not defeat their rights under Article 27 and CEDAW. Judgment was entered for the plaintiffs with a declaration of trust, each plaintiff awarded one acre, with each party bearing their own costs as family.

Key legal issues

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01

Limitation

Holding

The suit is not statute barred because it is founded on trust

Reasoning

Section 20(1) of the Limitation of Actions Act provides no limitation period for claims founded on trust. The Court of Appeal in Stephens v Stephens held that limitation does not apply where confidence reposed in a trustee is abused and trust property converted to personal use. The claim herein is precisely of that character.

p. 2
02

Res judicata

Holding

The plea of res judicata fails because the Tribunal was not competent to determine trust and the trust issue was never heard and decided

Reasoning

Although the Tribunal's award was adopted as a judgment of the Principal Magistrate's Court at Kerugoya, the Tribunal lacked jurisdiction to determine disputes concerning trust. Section 7 of the Civil Procedure Act requires that the former suit be heard and finally decided by a court of competent jurisdiction, a prerequisite not met here.

p. 2
03

Abuse of Court process

Holding

The suit is not an abuse of process; the plaintiffs are genuinely pursuing their share of their late father's land

Reasoning

The defendant adduced no evidence showing in what manner the plaintiffs were abusing court process. The court adopted the definition in Beinosi v Wiyley that abuse occurs where proceedings permitted by the rules of court are used for purposes extraneous to the pursuit of truth, and found none here.

p. 2
04

Trust in ancestral land

Holding

The defendant holds the suit land in trust for himself and his siblings; registration in his name does not defeat the trust

Reasoning

The suit land formed part of the deceased father's parcel and was awarded to the defendant as his late mother's house share, not as his private property. Being the only son of that house, and under Kikuyu Customary Law where land is registered in the first son's name as MURAMATI to hold in trust for the family, he is a recognized trustee. He cannot approbate and reprobate by claiming sole ownership after claiming the land as his mother's share at the Tribunal.

p. 3
05

Non-discrimination against married daughters

Holding

The defendant cannot discriminate against the plaintiffs because of their sex or marital status

Reasoning

Article 27 of the Constitution prohibits sex-based discrimination, and Kenya has ratified CEDAW. The defendant's violence and hostility had made it impossible for the plaintiffs to use the land, so their absence from the land and their marital status cannot defeat their entitlement.

p. 3

Legal principles established

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  • No limitation period applies to a claim founded on trust under Section 20(1) of the Limitation of Actions Act
  • Res judicata requires that the issue was heard and finally decided by a Court competent to determine it; a Land Disputes Tribunal had no jurisdiction over trust claims
  • Registration of land in a trustee's name does not relieve him of his obligations as trustee
  • A court will never imply a trust except in case of absolute necessity, and the intention to create a trust must be clearly determined

Court orders

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  1. 1.A declaration that the defendant holds land parcel No. KABARE/NYANGATI/3937 in trust for himself and the plaintiffs
  2. 2.An order for the determination of the trust by directing that each of the two plaintiffs gets one (1) acre from land parcel No. KABARE/NYANGATI/3937
  3. 3.Each party to meet their own costs

Authorities

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Legislation

  • Limitation of Actions ActSection 20(1)
  • Civil Procedure Act Cap 217Sections 6, 7 and 8
  • Constitution of KenyaArticle 27
  • Land Disputes Tribunals Act (repealed)null

Cases cited (10)

  • STEPHENS VS STEPHENS
    1987 K.L.R 125
  • JOSEPH MALAKWEN LELEI & ANOTHER VS RIFT VALLEY LAND DISPUTES APPEALS COMMITTEE & OTHERS
    C.A Civil Appeal No. 82 of 2006 (2014 e K.L.R)
  • BEINOSI VS WIYLEY
    1973 (SA 721 SCA)
  • MBOTHU & OTHERS VS WAITIMU & OTHERS
    1986 K.L.R 171
  • HUSSEY VS PALMER
    (1972) 3 All E.R 744
  • MUMO VS MAKAU
    2004 1 K.L.R 13
  • KANYI VS MUTHIORA
    1984 K.L.R 712
  • MUKANGU VS MBUI
    2004 2 K.L.R 256
  • NJUGUNA VS NJUGUNA
    2008 1 K.L.R 889
  • MWANGI VS MWANGI
    C.A Civil Appeal No. 245 of 2004 NBI 2013 e K.L.R
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over claims relating to land, including trust in land

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jecinta Wambura M. Ciero & another v Benson Warui Njanja [2018] KEELC 3935 (KLR)", Case Analysis (2018). ELC 135 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3935/eng@2018-03-14

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