Phylis Kamincia M’ Miriti & 3 others v M’ Rungeto Mbogori & 2 others [2019] KEELC 3639 (KLR)
The bottom line
#Kenya's Environment and Land Court in Meru ruled that married daughters can inherit family land under a customary trust, awarding four sisters equal shares.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendants hold the suit land in trust for the plaintiffs
Yes. The plaintiffs satisfied the Supreme Court's customary trust criteria: the land was family land, they belonged to the family, were not remote claimants, could have been entitled but for the succession proceedings, and the claim was against a family member who was the registered proprietor. The court also found a constructive trust arising from the 1st defendant's inequitable conduct.
The plaintiffs' father was the registered owner of both parcels; the 1st defendant took them over through succession proceedings in which the issue of trust was never determined. Independent witnesses confirmed the plaintiffs' long occupation and development of the land and that the defendants never lived there. The 1st defendant, raised by the plaintiffs' father, claimed the land as family land yet excluded the deceased's own family, displaying greed and selfishness.
Whether married daughters are excluded from inheritance under Meru customary law
No. The 1st defendant's assertion that the plaintiffs, being married at the time of the succession, were not entitled to inherit, was rejected in light of Article 27 of the Constitution on equality and equal treatment of women and men.
The court invoked Article 27, guaranteeing equality and equal benefit of the law and equal treatment of women and men, to defeat the customary exclusion of married daughters. The court found the 1st defendant had turned against the wife and children of the deceased for decades merely because they were or were supposed to be married. As a court of equity, it would not leave a genuine claim without a remedy.
Whether the 1st defendant's non-disclosure of the full litigation history and subsequent alienations affected the case
The court found the 1st defendant failed to disclose material facts, including subdivisions of the suit land and claims by other parties, contrary to the duty of utmost good faith in judicial proceedings.
The 1st defendant was well aware of the litigation history but was mute at trial on matters of subdivisions and other parties' claims. The court learned of Meru ELC Appeal No. 66 of 2018 and CMCC No. 49 of 2013 by chance and wondered how many other persons were claiming the suit properties. Non-disclosure of material facts undermines justice.
The liability of the 3rd defendant as a purchaser
Although the 3rd defendant bought from the 1st defendant claiming the land was unoccupied, he was aware of the plaintiffs' claim over the parcel where the plaintiffs reside, having been mentioned in the land dispute proceedings.
The 3rd defendant testified he found the land registered in the 1st defendant's name and drew an agreement, not knowing of prior ownership. However, the land tribunal proceedings in case no. 78 of 2004, in which the 3rd defendant was mentioned and in which the two acres he bought were to be returned to the plaintiffs, showed he was aware of the plaintiffs' claim.
Legal principles established
#- The elements qualifying a claimant as a trustee of family land under customary trust, as set out by the Supreme Court
- A trust is a question of fact to be proved by evidence
- A constructive trust arises where it would be inequitable for the holder to assert full beneficial ownership
- Under Meru customary law the Mukuru Mwene Njaa (head of family) bears the cloak of trusteeship over the deceased's family and estate
- Parties must make full disclosure of all material facts to the court, and non-disclosure undermines justice
Court orders
#- 1.A declaration that the defendants hold L.R No. Abothuguchi/Gaitu/xxxx, xxxx, xxxx, 2390 and L.T No. Abothuguchi/Ruiga/xxxx (or its subdivisions) in trust for the plaintiffs and for the 1st defendant and other family members
- 2.An order that the plaintiffs are entitled to the land which was parcel no. ABOTHUGUCHI/GAITU/xx (now subdivided)
- 3.The 1st defendant to remain with parcel no. ABOTHUGUCHI/RUIGA/xxxx (or the subdivisions thereof), which land he holds in trust for any other family members and third party claimants
- 4.The plaintiffs to share the land which was originally no. Abothuguchi/Gaitu/xx into 4 equal portions of 2.6 acres each
- 5.Cancellation of all titles resulting from title no. Abothuguci/Gaitu/xx and division of the land into 4 equal portions
- 6.The Land Registrar to dispense with the production of original titles to the parcels in the implementation of the judgment
- 7.The Deputy Registrar of the court authorized to sign all requisite documents to give effect to the implementation of the judgment
- 8.The consent of the land control board dispensed with in the implementation of the judgment
- 9.The Land Registrar to keep a copy of the decree in the parcel files of the new titles generated
- 10.Any subsisting orders of inhibition, injunction, caution or restriction in respect of the parcels discharged to give effect to the judgment
- 11.The 3rd defendant, third party claimants and other family members at liberty to pursue their claims against the 1st defendant in respect of the original parcel no. ABOTHUGUCHI/RUIGA/xxxx
- 12.Costs of the suit personally borne by the 1st defendant and awarded to the plaintiffs
- 13.The land registrar and the surveyor to act accordingly to ensure compliance with the orders
- 14.The DR of the court instructed to place a copy of the decree in appeal file no. 66 of 2018 Meru ELC and in file no. CMCC 49 of 2013
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land held in trust (claim framed under customary trust principles; Article 27 of the Constitution invoked on equality)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Phylis Kamincia M’ Miriti & 3 others v M’ Rungeto Mbogori & 2 others [2019] KEELC 3639 (KLR)", Case Analysis (2019). Civil Suit No 59 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3639/eng@2019-04-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.