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ELCDismissedELC Case of 2017 (Kerugoya) - suit on land parcel INOI/KIAGA/63· [2019] KEELC 2394 (KLR)

Michael Munene Kuburia & another v Virginiah Muthoni Gachubi & another [2019] KEELC 2394 (KLR)

Environment and Land Court
28 June 2019
ECE.C. Cherono
1,640 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a customary trust claim over family land, ruling that trusts must be proved with clear evidence and are never presumed.

What this practically means

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Executive summary

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The two plaintiffs, nephews of the late Samuel Gichubi Kuburia, sued the deceased's widow and daughter (the legal representatives of his estate) claiming that the deceased held land parcel No. INOI/KIAGA/63 in customary trust for himself and his two brothers, the plaintiffs' fathers. They sought declarations of trust, transfer of two-thirds of the parcel and vacant possession. The defendants denied any trust, asserting the deceased was the sole absolute proprietor, that the brothers received their own allocations in Mwea where they settled and were buried, and counter-claimed for eviction of the 1st plaintiff who occupied a small portion. Both sides filed submissions citing numerous authorities. The court, applying Karanja Wanjihia v Duncan Wanjihia and Mbothu v Waitimu, held that a trust is a serious issue of fact and law which is never presumed and must be proved by clear evidence. It found the plaintiffs had not discharged that burden: their fathers had been given their own land by the Unjiru Clan in Mwea, where they settled and were buried, so no trust capable of being implied existed. The court also noted prior litigation over the estate, including Embu Succession Cause No. 321 of 1994 and Nyeri Court of Appeal C.A No. 184 of 2008, which went against the plaintiffs. The suit was dismissed, the counter-claim allowed, and the plaintiffs given six months to vacate failing which eviction would issue. As the parties are close relatives, each party was ordered to bear their own costs.

Key legal issues

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01

Whether a customary trust existed over parcel INOI/KIAGA/63

Holding

No customary trust was proved; the plaintiffs failed to discharge the burden of proof placed on them

Reasoning

The court applied the principle that trusts are never presumed and must be proved by clear evidence. The evidence showed the plaintiffs' fathers were allocated their own land by the Unjiru Clan in Mwea, where they settled, developed and were buried, contradicting the claim that the registered proprietor held land for them. Prior litigation over the estate also went against the plaintiffs. The claim therefore failed.

p. 2
02

Whether the defendants' counter-claim for eviction should be allowed

Holding

Yes; counter-claim allowed and plaintiffs given six months to vacate

Reasoning

Having found no trust, the plaintiffs' continued occupation, particularly of the 1st plaintiff on a small portion as a licensee, was wrongful. The court allowed the counter-claim and granted six months to vacate with eviction thereafter.

p. 3

Legal principles established

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  • A trust, whether express or customary, must be proved by proper evidence and will not be presumed by the court
  • The court will never imply a trust save in case of absolute necessity and only to give effect to the parties' intention, which must be clearly determined

Court orders

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  1. 1.The plaintiffs' suit is dismissed
  2. 2.The defendants' counter-claim is allowed
  3. 3.The plaintiffs are given six (6) months to vacate from the suit land No. INOI/KIAGA/63 failing which they shall be evicted
  4. 4.Each party to bear their own costs

Authorities

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Cases cited (3)

  • Karanja Wanjihia Vs Duncan Wanjihia & 4 others
    (2004) e K.L.R
  • Mbothu & others Vs Waitimu & 11 others
    (1980), K.L.R 171
  • Estate of the late Jonathan Kinyua Waititu (deceased)
    (2017) e K.L.R Succession Cause No. 488 of 2010
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the ELC Act over claims concerning 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, "Michael Munene Kuburia & another v Virginiah Muthoni Gachubi & another [2019] KEELC 2394 (KLR)", Case Analysis (2019). ELC Case of 2017 (Kerugoya) - suit on land parcel INOI/KIAGA/63. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2394/eng@2019-06-28

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