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ELCDismissedMurang'a ELC Suit arising from plaint dated 21/6/2018· [2019] KEELC 3689 (KLR)

Nathalina Wanjiku Wanjama & 5 others v Agostine Kamuri Wanjama [2019] KEELC 3689 (KLR)

Environment and Land Court
11 April 2019
JKJ. G. Kemei
1,104 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Murang'a court dismissed a family's claim to ancestral land, ruling the matter was already decided in 1974 and cannot be reopened.

What this practically means

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Executive summary

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The 1st-6th Plaintiffs sued by plaint dated 21/6/2018 seeking a declaration that the Defendant holds land parcel No LOC9/KIRURI/1489 in trust for himself and the 2nd-6th Plaintiffs in equal shares, and an order directing dissolution of the trust and transfer of equal portions to the Plaintiff sons. The Defendant denied any trust, asserting the land was given to him by his grandfather, the late Kamuri Muritu, and registered in his name pursuant to a judgment in succession cause No 99 (delivered 10/4/1975). Settlement efforts failed and the matter proceeded to full hearing. The court framed two issues: whether the Defendant holds the land in trust for the Plaintiffs, and costs. Applying the Supreme Court's test in Isack M'Inanga Kieba and the customary-trust principles in Peter Gitonga, the court found that the deceased distributed all his lands during his lifetime, bequeathing the suit land in its entirety to the Defendant, and that a competent court so found in the 1974 succession cause. The 1st Plaintiff, mother of the parties, received 6 acres under the oral will, participated fully in the 1974 proceedings, and never challenged that decision; the court held she cannot resurrect the matter 34 years later, invoking the policy that litigation must come to an end. The Plaintiffs' suit was dismissed with costs to the Defendant.

Key legal issues

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01

Whether the Defendant holds the suit land in customary trust for the Plaintiffs

Holding

No customary trust was established. The deceased, Kamuri Muritu, bequeathed the suit land in its entirety to the Defendant during his lifetime, and that distribution was confirmed by a court in succession cause No 99 of 1974 on 10/4/1975. The Plaintiffs adduced no evidence to displace those findings, and the 1st Plaintiff, who participated fully in the 1974 proceedings and never challenged the decision, cannot resurrect the matter 34 years later.

Reasoning

The court applied the Supreme Court's test in Isack M'Inanga Kieba, which requires proof of family/clan land before registration, membership of that family or clan, a non-remote relationship, entitlement to registration but for intervening circumstances, and a claim against a registered proprietor who is a family member. The evidence showed the deceased disposed of his lands in his lifetime, the court in the 1974 succession cause found the entire suit land was bequeathed to the Defendant, and no evidence was led to disturb that finding. Relitigation of an adjudged matter was discouraged.

p. 2
02

Costs

Holding

Costs awarded to the Defendant, the Plaintiffs being on the frontier of vexatious litigants in a matter already adjudged.

Reasoning

Applying the principle that costs follow the event, the court noted this was a matter that stands adjudged and that the Plaintiffs' relitigation was vexatious in character. The suit having failed in its entirety, the Defendant was entitled to costs.

p. 2

Legal principles established

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  • Not every claim of a right to land qualifies as a customary trust; the essential elements are the nature of the holding of the land and the intention of the parties, and each case must be determined on its own merits and quality of evidence.
  • A trust can be created under customary law, and the circumstances surrounding registration of title must be examined to determine whether a trust was envisaged.
  • Litigation must come to an end; relitigation of a matter already determined by a competent court must be discouraged.
  • Costs follow the event.

Court orders

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  1. 1.The Plaintiffs' case is dismissed.
  2. 2.Costs of the suit awarded to the Defendant.

Authorities

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Cases cited (3)

  • Isack M'Inanga Kieba Vs Isaaya Theuri M'Lintari & Isack Ntongai M'Lintari
    SCOK Petition 10 of 2015
  • Kiarie v. Kinuthia
  • Peter Gitonga Vs Francis Maingi M'Ikiara
    Meru HC.CC No. 146 of 2000
Jurisdiction invoked
Original civil jurisdiction of the High Court/Environment and Land Court over trust and title to land (suit by plaint); no specific provision cited in the judgment

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, "Nathalina Wanjiku Wanjama & 5 others v Agostine Kamuri Wanjama [2019] KEELC 3689 (KLR)", Case Analysis (2019). Murang'a ELC Suit arising from plaint dated 21/6/2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3689/eng@2019-04-11

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