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ELCPartially AllowedELC No. 760 of 2013 (formerly HCCC No. 134 of 2009, Embu High Court)· [2019] KEELC 2246 (KLR)

Priscillah Muthoni Njagi v John Muriithi Kariuki [2019] KEELC 2246 (KLR)

Environment and Land Court
12 July 2019
ECE.C. Cherono
1,449 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that land registered in one person's name can still be held in trust for a relative under customary law, and cancelled the registration.

What this practically means

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Executive summary

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This first-instance ELC Kerugoya decision (E.C. Cherono, J) determined a claim originally filed by Mugo Njagi Ndega against his step-brother John Kariuki Njagi, both since deceased and substituted by Priscillah Muthoni Njagi and John Muriithi Kariuki respectively. The suit, begun as HCCC No. 134 of 2009 in Embu and transferred to Kerugoya as ELC No. 760 of 2013, sought declarations that the defendant held parcel BARAGWE/THUMAITA/1406 in trust for the plaintiff, alternatively that the plaintiff had acquired it by adverse possession, and alternatively that the Gichugu Land Disputes Tribunal and Provincial Appeals Tribunal proceedings were void for want of jurisdiction under Cap 300. The court framed three issues: customary trust, adverse possession and costs. On the evidence, the plaintiff testified that the Unjiru Clan allocated the original 12-acre parcel BARAGWE/THUMAITA/578 to the defendant's father on the understanding that half would go to the plaintiff's father-in-law, who returned from Nairobi in 1964, was shown a portion, and developed it; a 1990 clan-mediated subdivision produced parcels 1405 and 1406. Relying on Peter Gitonga v Francis Maingi M'Ikiara (HCCC No. 146 of 2000, Meru) on the creation of trusts under customary law despite registration, and noting the defendant did not controvert the plaintiff's evidence, the court held the trust proved over the three acres. Final orders declared the plaintiff entitled to the three acres by way of trust, cancelled the defendant's registration, directed registration of the plaintiff as absolute proprietor, and ordered each party to bear own costs as they are relatives. The adverse possession and Tribunal-jurisdiction prayers were not granted in the final orders.

Key legal issues

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Whether the defendant holds land parcel BARAGWE/THUMAITA/1406 in trust for the plaintiff

Holding

Yes - the plaintiff proved a customary trust over the three acres where her family lives and has developed.

Reasoning

The plaintiff testified that the clan gave the original parcel BARAGWE/THUMAITA/578 to the defendant's father on the understanding that half would go to the plaintiff's father-in-law, who returned in 1964, was shown a portion, built and planted coffee and food crops. The court applied the principle that customary trusts may underlie registered title and found the defendant's evidence did not controvert the plaintiff's case. The claim succeeded on trust grounds alone; adverse possession was not determined.

p. 2

Legal principles established

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  • A trust can be created under customary law and the circumstances surrounding registration must be examined to determine the purpose of the registration.

Court orders

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  1. 1.It is hereby declared that the plaintiff is entitled to three (3) acres registered as land parcel No. BARAGWE/THUMAITA/1406 by way of trust
  2. 2.The defendant's registration be and is hereby cancelled and the plaintiff be registered as absolute proprietor of the said land parcel No. BARAGWE/THUMAITA/1406
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Land Disputes Tribunals ActCap 300

Cases cited (1)

  • Peter Gitonga Vs Francis Maingi M'Ikiara
    HCCC No. 146 of 2000 (Meru)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (suit transferred from Embu High Court to ELC Kerugoya)

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, "Priscillah Muthoni Njagi v John Muriithi Kariuki [2019] KEELC 2246 (KLR)", Case Analysis (2019). ELC No. 760 of 2013 (formerly HCCC No. 134 of 2009, Embu High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2246/eng@2019-07-12

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