Martha Thairora Gikundi v Elizabeth Kananu & another [2019] KEELC 3857 (KLR)
The bottom line
#A Meru court dismissed a daughter-in-law's claim that family land was held in trust for her, because she could not prove the trust with evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff proved a customary trust over parcel NYAKI/KITHOKA/3873
The Plaintiff did not prove a customary trust; the suit land was not family or ancestral land and no intention to create a trust was shown.
The Plaintiff bore the legal burden of proving customary trust by laying bare the root of title. She adduced no evidence that the suit land was family or clan land. The 1st Defendant acquired the land herself during demarcation as an ex-Mau Mau fighter, and the Chief corroborated that it was gifted to her. The Plaintiff's husband was buried at Kaithe, inconsistent with any trust over the Kithoka land, and the 1st Defendant freely dealt with the land during her lifetime as absolute owner.
Whether the Plaintiff is a trespasser liable to eviction under the Defendants' counterclaim
Yes. Having failed to prove a trust, the Plaintiff could not resist the counterclaim; the 2nd Defendant's registered title under the Land Registration Act prevails and eviction was ordered with six months to vacate.
Section 26 of the Land Registration Act makes a certified title prima facie evidence of ownership, subject to trusts including customary trusts under section 28(b). Since no trust was proved, the 2nd Defendant's title, transferred inter vivos by the 1st Defendant, was unimpeached and protected under sections 24, 25 and 26. There was no justifiable reason for the Plaintiff to remain on the land.
Legal principles established
#- Customary law trust is proved by leading evidence on the history of the suit property and the relevant customary law on which the trust is founded
- A trust is never implied by the court absent a clear intention to create one
- The onus lies on a party relying on the existence of a trust to prove it through evidence
- Not every claim of a right to land qualifies as a customary trust; the nature of the holding and the intention of the parties are essential (Supreme Court elements set out in Isack Kieba M'Inanga)
Court orders
#- 1.The Plaintiff's claim fails and is dismissed.
- 2.The counterclaim succeeds.
- 3.The Plaintiff is ordered to vacate the suit land within a period of 6 months and be allowed to harvest all her crops on the land, if any.
- 4.In default, eviction shall ensue in strict adherence to the provisions of section 152 G of the Land Act.
- 5.Each party to meet their own costs.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and the Environment and Land Court Act (not expressly cited in the judgment; suit commenced by plaint)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martha Thairora Gikundi v Elizabeth Kananu & another [2019] KEELC 3857 (KLR)", Case Analysis (2019). Meru ELC Case (plaint dated 25/11/13; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3857/eng@2019-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.