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ELCDismissedOriginating Summons dated 28th November, 2011· [2019] KEELC 3552 (KLR)

Musyimi Nduto Mulaa & another v Nzisa Kombo & another [2019] KEELC 3552 (KLR)

Environment and Land Court
3 May 2019
1,937 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiffs, Musyimi Nduto Mulaa and Mukonyo Kyove, sued Nzisa Kombo and Matata Kombo, administrators of the estate of Kombo Nduto, seeking declarations that land parcel Makueni/Kyaluma/3 is ancestral land of the family of the late Nduto Mulaa held by Kombo Nduto under customary trust, cancellation of the title issued to the 1st Defendant through Machakos succession cause No. 219 of 2007, division of the land among beneficiaries, an injunction against eviction, and costs. Parties consented to viva voce evidence. The Plaintiffs testified that Nduto Mulaa settled on the land in the 1930s, that Kombo Nduto was registered during demarcation to hold it in trust for his siblings, and that the 1st Defendant had issued eviction notices. The 1st Defendant denied the land was ancestral, asserting her husband acquired and registered it in the 1970s, and admitted issuing eviction notices and non-disclosure in the succession cause. The court found the ancestral home of the parties was Kitui, not Kyaluma, since both the 1st Plaintiff and Kombo migrated from Kitui; the 1st Plaintiff had bought his own land elsewhere. No evidence showed Kombo was registered in trust at adjudication and demarcation. The 2nd Plaintiff's objection to the succession cause was not shown to have any outcome, leading the court to conclude the suit was an impermissible attempt to appeal the succession determination. Holding that the Plaintiffs failed to prove their case on a balance of probabilities, the court dismissed the Originating Summons with costs to the Defendants.

Key legal issues

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01

Whether a customary trust existed over Makueni/Kyaluma/3

Holding

No customary trust was established; the Plaintiffs failed to prove registration in trust at demarcation and the ancestral land was found to be in Kitui, not Kyaluma

Reasoning

The court found both the 1st Plaintiff and the late Kombo moved from Kitui and settled in Kyaluma, so ancestral land lies in Kitui. The 1st Plaintiff bought his own land elsewhere. No evidence showed that at adjudication and demarcation Kombo was registered to hold the land in trust for his siblings. Claims based on birth and residence on the land did not establish a trust.

p. 3
02

Whether the suit was an attempt to relitigate the succession cause

Holding

The suit was in substance an appeal against the transmission of the land in Machakos succession cause No. 219 of 2007, which the court would not entertain

Reasoning

The 2nd Plaintiff had filed objection proceedings in the succession cause but never disclosed their outcome. The court treated the Originating Summons as an attempt to appeal against that determination, which it lacked the mandate to entertain, reinforcing the bar against relitigating matters determined in succession proceedings.

p. 3
03

Whether the Plaintiffs proved their cause of action on a balance of probabilities

Holding

They did not; the Originating Summons was dismissed with costs

Reasoning

The court agreed with the Defendants' counsel that the Plaintiffs failed to discharge the burden of proof. Evidence that the 1st Defendant obtained title through succession, that Kombo acquired and registered the land in the 1970s, and that the Plaintiffs produced no proof of trust at demarcation meant no cause of action was established on the balance of probabilities.

p. 3

Legal principles established

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  • A party alleging customary trust must adduce evidence that, at the time of adjudication and demarcation, the registered proprietor was registered to hold the land in trust for others
  • An originating summons cannot be used as a vehicle to appeal against a determination in a succession cause; this court will not entertain such a challenge

Court orders

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  1. 1.Dismissal of the Originating Summons with costs to the Defendants

Authorities

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Cases cited (2)

  • Phillicery Nduku Mumo vs. Nzuki Makau
    [2002] eKLR
  • Mbui Mukangu vs. Gerald Mutwiri Mbui
    [2004] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land held under customary trust

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, "Musyimi Nduto Mulaa & another v Nzisa Kombo & another [2019] KEELC 3552 (KLR)", Case Analysis (2019). Originating Summons dated 28th November, 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3552/eng@2019-05-03

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