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ELCPartially AllowedMurang'a ELC Civil Suit (Plaint dated 23/1/2018, amended 19/2/2019)· [2019] KEELC 924 (KLR)

Francis Kihoro Maina & 2 others (suing as administrators of the Estate of Eston Maina Kamere - Deceased) v Damaris Wanjiru Maina [2019] KEELC 924 (KLR)

Environment and Land Court
7 November 2019
JKJ. G. Kemei
5,123 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A Murang'a court cancelled a woman's 2017 land title because the family proved the parcel was ancestral land held under customary trust.

What this practically means

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Executive summary

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The Plaintiffs, administrators of the estate of Eston Maina Kimere, sued their niece, the Defendant, claiming that LR LOC 19/KIAWAMBOGO/204, registered in the name of Eston's first wife Hannah Wanjiru Maina during the 1960s demarcation, was held in customary trust for Eston's family. They alleged that after obtaining letters of administration to Hannah's estate in Kangema Succession Cause No. 21 of 2016, the Defendant had the land transmitted to herself in 2017 through fraud, and sought declarations of trust, vesting in the estate, and revocation of her title. The Defendant denied the trust, asserting her grandmother purchased the land privately, and counterclaimed for vacant possession, a permanent injunction, mesne profits and damages, alleging trespass. The court framed three issues: existence of a customary trust, entitlement to counterclaim relief, and costs. Applying the Supreme Court's M'Inanga criteria and Section 28(b) of the Land Registration Act, the court found the land was family and ancestral land before registration, that it was registered in Hannah's name because Eston was absent in Nairobi under colonial travel restrictions, that Hannah had no means to purchase it and never exercised proprietary control, and that the Defendant produced no documentary evidence of purchase, her own witnesses admitting ignorance of how the land was acquired. The court held the customary trust proved on a balance of probabilities, dismissed the counterclaim, declared the land was held in trust for Eston's family, and cancelled the Defendant's 2017 title. As the parties are related, each party was ordered to bear their own costs.

Key legal issues

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01

Whether the suit land LR LOC 19/KIAWAMBOGO/204 was held by Hannah Wanjiru Maina in customary trust for the family of Eston Maina Kimere

Holding

Yes. The Plaintiffs proved on a balance of probabilities that the land was family/ancestral land before registration, that it was registered in the name of the 1st wife because Eston was away in Nairobi during demarcation, and that Hannah lacked means to purchase it and never exercised proprietary control over it.

Reasoning

Applying the Supreme Court's elements in M'Inanga, the court found the land was consolidated from family and ancestral fragments before registration; the claimants belong to the family; the registration of the 1st wife was explained by Eston's absence under colonial travel restrictions; Hannah planted no tea and relocated to the family land in Nyahururu; and the Defendant produced no documentary evidence of purchase, her own witnesses admitting they did not know how the land was acquired.

p. 6
02

Whether the Defendant was entitled to the counterclaim reliefs as absolute proprietor

Holding

No. The counterclaim failed because the title she obtained through transmission from her grandmother's estate is encumbered by the customary trust.

Reasoning

Having found a customary trust exists, the Defendant could not claim exclusive possession, injunction, mesne profits or damages against the beneficiaries of the trust. Her title, though obtained through a legal succession process, was subject to the overriding interest of the trust under Section 28(b) of the Land Registration Act and was therefore cancelled.

p. 6

Legal principles established

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  • Customary trust is an overriding interest under Section 28(b) of the Land Registration Act and one of the ways of acquiring land in Kenya; not every claim of a right to land qualifies as a customary trust - the nature of the holding and intention of the parties are essential, applying the M'Inanga elements

Court orders

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  1. 1.Plaintiff's suit succeeds
  2. 2.The Counterclaim is dismissed
  3. 3.It is hereby declared that the parcel No LOC 19/KIAWAMBOGO/204 was held by Hannah Wanjiru Maina in trust for the family of the estate of Eston Maina Kimere (deceased)
  4. 4.The certificate of title for LR LOC 19/KIAWAMBOGO/204 issued on 14th August 2017 in the name of Damaris Wanjiru Maina is encumbered by trust
  5. 5.The trust be and is hereby determined and the title in the name of Damaris Wanjiru Maina is cancelled and reverted to Hannah Wanjiru Maina
  6. 6.Each party to meet their own costs of the suit
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (court with jurisdiction over disputes relating to land); claim founded on trust under Section 28(b) of the Land Registration Act

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, "Francis Kihoro Maina & 2 others (suing as administrators of the Estate of Eston Maina Kamere - Deceased) v Damaris Wanjiru Maina [2019] KEELC 924 (KLR)", Case Analysis (2019). Murang'a ELC Civil Suit (Plaint dated 23/1/2018, amended 19/2/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/924/eng@2019-11-07

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