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ELCPartially AllowedNot stated in judgment (Murang'a Environment and Land Court suit)· [2019] KEELC 3694 (KLR)

Lucy Gathoni Kireru v James Karuku Kireru [2019] KEELC 3694 (KLR)

Environment and Land Court
11 April 2019
JKJ G Kemei
2,845 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a daughter is entitled to family land through customary trust, even though customary practices once barred women from owning land.

What this practically means

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Executive summary

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The Plaintiff and Defendant are siblings, children of Kireru Kioria's junior wife. The father owned 9.2 acres (LOC 14/KAIRO/114); after his death in 1978 a 1979 Kangema succession cause transmitted half-shares to the Defendant and his stepbrother Kihumba, later subdivided into two parcels including LOC 14/KAIRO/2219 held by the Defendant. The Plaintiff, who has lived on the land all her life, claimed 1.5 acres by way of customary trust, seeking a declaration, dissolution of the trust, subdivision and transfer, an injunction, and Kshs 32,000/- for destroyed tea bushes. The Defendant offered only 0.5 acres as a gratuitous licence and denied any trust. Framing three issues, the court applied the Supreme Court's criteria in Isack M'Inanga Kieba for customary trusts and the overriding-interest provisions of the Land Registration Act, 2012. It found the land was family/ancestral land, the Plaintiff a family member with a non-remote claim, and that her non-registration resulted from the customary practice barring women from owning land - the intervening circumstance. Relying on the constitutional equality and dignity provisions, the court held the daughter entitled to equal treatment. The claim for Kshs 32,000/- was declined as unsupported. The court declared the trust, ordered dissolution, subdivision and transfer of 1.5 acres within 45 days (Plaintiff bearing transfer costs), provided for default execution by the Deputy Registrar, granted an injunction protecting her possession, and awarded costs of the suit to the Plaintiff against the Defendant.

Key legal issues

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01

Whether a customary trust was proved over the suit land in favour of the Plaintiff

Holding

The Plaintiff proved a customary trust; the land is family/ancestral land encumbered by a customary trust in her favour

Reasoning

Applying the Supreme Court's elements in Isack M'Inanga Kieba, the court found the land was family/ancestral land before registration, the Plaintiff belongs to the family, has lived on it all her life, and her non-registration was due to customary practice that barred women from owning land - the intervening circumstance. Her unchallenged evidence that her parents intended she get 1.5 acres remained uncontroverted.

p. 5
02

Whether the claim for Kshs 32,000/- for replanting tea bushes succeeds

Holding

The claim was declined as unsupported

Reasoning

The Plaintiff alleged destruction of 800 tea bushes and uprooting of nappier grass, but led no evidence valuing the loss; the court found the claim unsupported and refused that head of relief while granting the declaratory and proprietary reliefs.

p. 5
03

The place of gender equality under the Constitution 2010 in inheritance of family land

Holding

The daughter is equal to her siblings and entitled to equal treatment; tokenistic allocation is inconsistent with Articles 10, 19, 20, 27 and 40

Reasoning

The court held the legal landscape changed with the 2010 Constitution; equality provisions accord women the right to equal treatment in economic and social spheres, and customary practices denying women registration cannot limit property rights contrary to Article 24.

p. 5

Legal principles established

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  • Customary trust is a mode of acquisition of land in Kenya and subsists as an overriding interest even where not noted on the register
  • A claimant need not be registered where the intervening circumstance was customary practice barring women from being registered as owners

Court orders

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  1. 1.A declaration that the Defendant holds 1.5 acres of the land parcel LOC 14/KAIRO/2218 in trust for the Plaintiff.
  2. 2.An order for the dissolution of the trust and the subdivision and transfer of 1.5 acres out of the suit land.
  3. 3.The Defendant to subdivide the suit land and transfer 1.5 acres out of LOC 14/KAIRO/2218 to the Plaintiff within 45 days, with transfer costs borne by the Plaintiff.
  4. 4.In default, the Deputy Registrar to execute all documents required to effect the transfer.
  5. 5.The Land Registrar may dispense with the original title or other documents in the Defendant's custody.
  6. 6.An injunction against the Defendant, his servants or agents from entering the land, cutting tea bushes and crops, demolishing structures, evicting the Plaintiff or interfering with her quiet possession.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 19(2), 20(4)(a), 23(3), 24, 25(c), 27, 40, 162(2)(b), 259
  • Environment and Land Court ActSection 13
  • Registered Land Act (repealed), Cap 300Sections 27, 28, 30
  • Land Registration Act, 2012Sections 24, 25, 26, 28 (incl. 28(b))
  • Law of Succession ActNoted as enacted in 1982 (not cited by section)

Cases cited (4)

  • 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
  • Karuntimi Raiji Vs M'Makinya M'Itunga
    (2013) EKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution read with Section 13 of the Environment and Land Court Act

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, "Lucy Gathoni Kireru v James Karuku Kireru [2019] KEELC 3694 (KLR)", Case Analysis (2019). Not stated in judgment (Murang'a Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3694/eng@2019-04-11

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