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ELCPartially AllowedNot stated in the judgment as provided (Murang'a ELC suit)· [2019] KEELC 116 (KLR)

JKN-A & 2 others v TMN (suing as the next friend of SNK alias NK – person of unsound mind) & 2 others [2019] KEELC 116 (KLR)

Environment and Land Court
11 December 2019
JKJ.G. Kemei
2,751 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that registered land held in a family trust belongs to the whole family, and relatives who have occupied their share openly for over 12 years own it by adverse possession.

What this practically means

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Executive summary

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The Plaintiffs, sons of the late JNK, sued their paternal uncle's wife TM (suing on behalf of SNK, said to be of unsound mind) and two other Defendants over LOC4/GAKARARA/xxx, a 7-acre parcel registered in SNK's name. They sought declarations of customary trust and adverse possession, cancellation of SNK's title, and subdivision of the land among the family. The 1st Defendant counterclaimed for dismissal of the suit, eviction of the Plaintiffs and a permanent injunction, contending that SNK was absolute owner and that JNK's family had been allocated a separate 2.2-acre parcel which they refused to occupy; she also raised a pending Kandara suit between the parties. The 2nd and 3rd Defendants filed a defence but neither attended court nor tendered evidence. Framing three issues - trust, adverse possession and eviction - the court held that customary trust, an overriding interest under section 28(b) of the Registered Land Act, was proved through evidence of the land's history: registration in the younger son's name because the elder was in detention, the family fundraiser to rescue the land from a secret sale, elders' minutes in which the 1st Defendant admitted the land was family land, and occupation in two halves with kin buried on the land. SNK was found to have held the land as a trustee or 'Muramati'. Adverse possession was also established, the Plaintiffs having openly and continuously occupied their half for over fifty years, extinguishing the 1st Defendant's title to that extent. The counterclaim was dismissed. The court declared the trust and adverse possession, ordered rectification and subdivision of the title (SNK 3.5 acres; JK, SNN and JKN-C 1.17 acres each), directed execution of the requisite documents, with the Deputy Registrar to execute in default. Each party to bear subdivision costs; no orders as to costs, the parties being related.

Key legal issues

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01

Whether the Plaintiffs proved customary trust over the suit land

Holding

Yes - the 1st Defendant held the suit land, or the brother's share thereof, in trust as a 'Muramati' for his late brother JNK and his family

Reasoning

The court applied the test in Njenga Chogera (adopting Muthuita) that customary trust is proved by evidence of the history of the property and the customary law founding the trust. Evidence showed the land was family land of the patriarch, demarcated by the mother N, with registration in the younger son's name only because the elder son was in detention. The family, including J, contributed to rescuing the land from an attempted sale, and elders' minutes showed the 1st Defendant admitted the land was family land. Both families occupied separate halves and buried kin on the land. On a balance of probabilities trust was established.

p. 4
02

Whether the Plaintiffs established title by adverse possession

Holding

Yes - title to ½ share of the suit land acquired by adverse possession, extinguishing the 1st Defendant's title to that extent

Reasoning

The court set out the elements of adverse possession: factual possession and animus possidendi, possession nec vi, nec clam, nec precario for twelve years, knowledge of the registered owner, and continuity. The Plaintiffs, sons of J, had lived, farmed and buried their kin on their ½ portion since birth, openly and continuously, a period exceeding fifty years, while the 1st Defendant occupied the other half. Occupation was inconsistent with and in denial of the registered owner's title for far beyond the twelve-year limitation period.

p. 4
03

Whether the Plaintiffs should be evicted from the suit land

Holding

No - the counterclaim for eviction failed because the Plaintiffs are not trespassers but hold an overriding interest through adverse possession and trust

Reasoning

The 1st Defendant's counterclaim sought eviction and a permanent injunction on the basis that the Plaintiffs occupied the land illegally. The court held that the Plaintiffs enjoy an overriding interest on the suit land entitling them to ownership and title through adverse possession, and that a person cannot trespass on his own land. Consequently the claim of eviction failed and the counterclaim was dismissed in its entirety.

p. 4

Legal principles established

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  • Customary trust is an overriding interest that affects registered land and subsists on the title without being noted on the register
  • 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
  • The elements of adverse possession are factual possession, animus possidendi, possession without force, secrecy or persuasion for twelve years, knowledge of the registered owner, and continuity of possession
  • A person in adverse possession cannot be evicted on the basis that he is a trespasser, since a person cannot trespass on his own land

Court orders

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  1. 1.The counterclaim of the Defendants fails and is dismissed
  2. 2.A declaration that the registration of SNK in respect of Land parcel No LOC4/GAKARARA/xxx (suit land) approximately 7 acres was held in trust for himself and his brother JNK (deceased) and his entire family
  3. 3.A declaration that the Plaintiffs are entitled by way of adverse possession having occupied ½ share of LOC4/GAKARARA/xxx for a period exceeding 12 years, and the title held by the 1st Defendant is extinguished by operation of law to the extent of ½ share
  4. 4.The title be rectified and subdivided and reissued as follows: SNK 3.5 acres; JK 1.17 acres; SNN 1.17 acres; JKN-C 1.17 acres
  5. 5.The subdivisions on the ground to conform as practicable as possible to the position of settlement on the suit land
  6. 6.Each party to meet the cost of the subdivision and registration of titles
  7. 7.The 1st Defendant to execute the requisite documents to effect the orders, and in default the Deputy Registrar of the Court is mandated to do so
  8. 8.No orders as to costs, the parties being related

Authorities

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Legislation

  • Registered Land Act (repealed)Section 28(b) (and section 30(g))

Cases cited (3)

  • Njenga Chogera -vs- Maria Wanjira Kimani & 2 Others
    [2005] eKLR
  • Muthuita -vs- Muthuita
    [1982-88] 1 KLR 42
  • Titus Kigaro Munyi v Peter Mburu Kimani
    CA No 28 of 2014
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to title to and occupation of land

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, "JKN-A & 2 others v TMN (suing as the next friend of SNK alias NK – person of unsound mind) & 2 others [2019] KEELC 116 (KLR)", Case Analysis (2019). Not stated in the judgment as provided (Murang'a ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/116/eng@2019-12-11

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