Stephen Njau v Nancy Wanjiru Watheka & 2 others [2019] KEELC 5084 (KLR)
The bottom line
#A Kenyan court ruled that land registered in family members' names was actually held in trust for the whole family, and cancelled the titles for joint family registration.
What this practically means
#Executive summary
#Key legal issues
#Whether the jurisdictional objection based on the Matrimonial Property Act, 2013 could sustain a striking out of the suit
The objection failed because it was raised belatedly in submissions without being pleaded, ambushing the Plaintiff; the pleadings founded the case on trust, not matrimonial property.
The Defendants never pleaded lack of jurisdiction nor referred to the suit properties as matrimonial property in their defence or evidence; they actively participated in trial and raised the objection only in submissions. The court held this denied the Plaintiff fair notice and an opportunity to respond, and that the pleadings themselves showed the case was one of trust and its breach.
Whether the Defendants' plea of gifts inter vivos defeated the claim of trust
The gifting defence failed: it was not pleaded or proved by evidence, and on the evidence the Plaintiff remained in possession and control of the suit properties, never having parted with possession to the donees.
The court noted that gifting was raised only in submissions, not in pleadings or evidence. Even on merits, a valid gift inter vivos requires delivery of possession to the donee. Both sides' evidence showed the Plaintiff was in possession, collected rent and derived full benefits, manifesting no intention of parting with the properties.
Whether the suit properties were held in trust for the family
The court found a trust existed. Since parcel No. 1537, registered in the same manner, was held in trust for the Plaintiff in ELC No. 35 of 2012 (unappealed), and the Defendants offered no distinguishing evidence, the suit properties were likewise held in trust.
The Plaintiff relied on the judgment in ELC No. 35/2012 in which the court found parcel No. BUKHAYO/MUNDIKA/1537, registered in the Defendants' names in the same manner, was held in trust for him. There was no appeal from that decision. The Defendants passed the point over in silence and failed to show why the suit properties should be treated differently.
Legal principles established
#- An issue of jurisdiction should be raised timeously in the pleadings, not sprung on an opponent in submissions
- A valid gift inter vivos requires the donor to put the donee into possession of the gifted property
- Issues not pleaded or adduced in evidence cannot be introduced for the first time in submissions
Court orders
#- 1.An order of cancellation of title to land parcel No. LR. No. SOUTH TESO/ANGOROMO/1617, LR. No. SOUTH TESO/ANGOROMO/4087 and LR. No. SOUTH TESO/ANGOROMO/1697 and the same be registered in the joint names of Nancy Wanjiru Watheka, James Kamau, Antony Watheka, Ann Wanjiru Njau, Agnes Wangechi Njau, Ruth Nyambura, Bill Kamau Njau and Shonan Kamau Njau
- 2.Each party to bear its own costs
- Jurisdiction invoked
- Environment and Land Court jurisdiction under Article 162(2) of the Constitution (land disputes concerning trust in land); not expressly cited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Njau v Nancy Wanjiru Watheka & 2 others [2019] KEELC 5084 (KLR)", Case Analysis (2019). Not stated in the judgment (plaint dated 9/2/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5084/eng@2019-09-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.