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ELCPartially AllowedELC Suit (Nyeri) - number not stated in judgment· [2019] KEELC 4010 (KLR)

Michael Gichohi Macharia & 2 others v Mary Wairimu Mwangi & 2 others [2019] KEELC 4010 (KLR)

Environment and Land Court
28 February 2019
LWL N Waithaka
2,896 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that living on and burying a relative on registered land doesn't prove family ownership, ordering the defendants to vacate.

What this practically means

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Executive summary

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The plaintiff, son and administrator of the estate of Kahutu Gichohi (deceased), sued three defendants seeking their eviction from LR No. Githi/Igana/8767 and a permanent injunction restraining them from trespassing on or interfering with it, alleging they entered in 2015 and were committing acts of waste. The defendants, through a statement of defence and counter-claim, asserted that the land belonged to their father, Gathogo Wachira, who died in the 1940s before demarcation, and that the plaintiffs' father was registered as proprietor only to hold the land in trust for their family because their father had no son. They sought a declaration of trust or, alternatively, a declaration that they had acquired the land by adverse possession. At the hearing, the evidence showed the defendants' mother lived on and was buried in the suit property from around 1960, while the defendants themselves were married and lived in their husbands' homes, first asserting a claim in 2008 when a caution was procured through the District Officer. The court held that the pleaded trust was not proved: the evidence of long residence and burial was insufficient, and the testimony of D.W.2 and D.W.3 was hearsay or unsubstantiated. The adverse possession claim also failed because the defendants' own possession began in 2008, less than twelve years before the 2015 suit, and they did not claim as administrators of their mother's estate. The court allowed the plaintiffs' suit as prayed and dismissed the counter-claim with costs to the plaintiffs.

Key legal issues

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01

Trust arising from land registration

Holding

No trust in favour of the defendants or their mother was proved

Reasoning

The court found that evidence that the defendants' mother lived on and was buried in the suit property did not establish the circumstances under which the plaintiffs' father was registered as proprietor or that his registration was subject to a trust. The testimony of D.W.2 and D.W.3 on the clan's decision was hearsay or unsubstantiated, and the claim failed for want of proof.

p. 4
02

Adverse possession

Holding

The defendants' adverse possession claim failed because the statutory period had not accrued

Reasoning

Possession by the defendants admittedly began in 2008 when they laid claim, and the suit was filed in 2015, only about seven years later. As they did not claim as administrators of their deceased mother's estate, they could not tack her earlier possession since the 1960s onto their own. The claim was therefore unmaintainable.

p. 4

Legal principles established

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  • Long residence, use and burial of a relative on registered land, without more, does not prove that the registration was subject to a trust
  • A party pleading a trust bears the burden of leading evidence proving it; hearsay or unsubstantiated evidence cannot discharge that burden
  • A claimant who does not sue as administrator of a deceased predecessor's estate cannot rely on the predecessor's possession for adverse possession; only the claimant's own possession counts

Court orders

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  1. 1.The plaintiffs' suit is allowed as prayed (eviction and permanent injunction in respect of LR No. Githi/Igana/8767)
  2. 2.The defendants' counter-claim is dismissed
  3. 3.Costs of the counter-claim/suit to the plaintiffs

Authorities

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Legislation

  • Limitation of Actions Act (implied reference to the time provided in law for acquiring land by adverse possession)Not specified

Cases cited (1)

  • Moses Mbugua v. Mary Nyambura Ng'ethe
    2012 eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (statutory provision not expressly 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, "Michael Gichohi Macharia & 2 others v Mary Wairimu Mwangi & 2 others [2019] KEELC 4010 (KLR)", Case Analysis (2019). ELC Suit (Nyeri) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4010/eng@2019-02-28

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