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ELCAllowedOriginating Summons dated 20/5/2013· [2018] KEELC 4186 (KLR)

In re Estate of James Kihara (Deceased) [2018] KEELC 4186 (KLR)

Environment and Land Court
9 March 2018
BEB M Eboso
2,078 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Nairobi court ruled that land registered in one brother's name half a century ago actually belonged half-and-half to both brothers under customary trust and adverse possession.

What this practically means

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Executive summary

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The plaintiff, widow and administrator of the estate of the late James Kihara Gatei, brought an Originating Summons against her brother-in-law, Joseph Thuku Gatei, seeking a declaration that he held half of Land Parcel Githunguri/Kiairia/T477 in trust for the deceased's estate and, in the alternative, that the deceased had acquired that half by adverse possession. The land had been bought by the parties' late mother, Naomi Wangari Gatei, but registered directly in the defendant's name in 1967; both brothers and their families had occupied and cultivated demarcated halves for over 50 years. The plaintiff testified with one witness; the defendant testified alone, claiming his mother had gifted him the land and given the deceased other land in Ruiru. The court framed two issues: whether the defendant held half the land in trust for the deceased's estate, and whether the deceased had acquired title by adverse possession. On the first, the court found a customary trust existed, the defendant being a trustee or Muramati in Gikuyu custom. On the second, applying the requirements of adverse possession under Sections 7, 9, 13, 37 and 38 of the Limitation of Actions Act and Court of Appeal authorities, it found the deceased's occupation satisfied all elements. The Originating Summons succeeded on both limbs. The court declared the trust, ordered transfer of the half portion to the plaintiff as administrator, directed the Deputy Registrar to execute instruments if the defendant failed to within 30 days, ordered costs of subdivision shared equally, and directed each party to bear their own costs.

Key legal issues

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01

Trust - customary trust over family land

Holding

The defendant holds one half of the suit property in trust for the estate of his late brother

Reasoning

The mother bought the land and registered it in the younger son's name so he could hold it for both brothers. Both brothers and their families occupied and cultivated demarcated halves for over 50 years with no eviction attempt. This evidence supported a customary trust, the defendant being a trustee or Muramati, proved on a balance of probabilities.

p. 2
02

Adverse possession

Holding

The deceased had acquired title by adverse possession to one half of the suit property

Reasoning

The court set out the requirements of adverse possession: factual possession and animus possidendi, occupation without force, secrecy or persuasion for twelve years, owner's knowledge, and continuity. The deceased's occupation of half the land for over 50 years satisfied all essential features, so title by adverse possession was also established.

p. 3

Legal principles established

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  • To establish adverse possession a litigant must prove factual possession and animus possidendi, occupation nec vi, nec clam, nec precario for twelve years, knowledge by the registered owner, and continuity of possession
  • Computation of time for adverse possession runs from when there is actual or constructive knowledge by the registered proprietor
  • Registration of a family member as proprietor of family land can ground a customary trust in favour of other family members

Court orders

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  1. 1.It is hereby declared that the defendant, Joseph Thuku Gatei, holds in trust for the benefit of the estate of his late brother, James Kihara Gatei, one half (½) portion of the suit property, Land Parcel No Githunguri/Kiairia/T477
  2. 2.The defendant is hereby ordered to transfer the said one half (½) portion of the suit property to the plaintiff, Rakeri Wairimu Kihara to hold the same as Administrator of the estate of the late James Kihara Gatei
  3. 3.Subdivision, title, transfer, processing and related costs shall be born equally by the parties to this suit
  4. 4.The Deputy Registrar of this court is directed to execute relevant instruments should the defendant fail to execute them within 30 days
  5. 5.Each party shall bear own costs of this suit
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land parcels

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, "In re Estate of James Kihara (Deceased) [2018] KEELC 4186 (KLR)", Case Analysis (2018). Originating Summons dated 20/5/2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4186/eng@2018-03-09

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