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ELCPartially AllowedE.L.C. Case No. 134 of 2014 (consolidated with Embu ELC No. 338 of 2015)· [2020] KEELC 2034 (KLR)

Kathendu Kareri & Paul Nguku Ngari v Ita Kiborio & Charles Nthiga Gitumo (Sued as the personal representative of the Estate of Mugo Gitumo (Deceased); Munyi Ngai (Interested Party) (Environment & Land Case 134 of 2014) [2020] KEELC 2034 (KLR)

Environment and Land Court
27 February 2020
3,826 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Embu Land Court ruled that land registered in one family member's name can still legally belong to the whole family under customary trust.

What this practically means

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Executive summary

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In this first-instance decision, the Environment and Land Court at Embu (Y.M. Angima, J) determined two consolidated suits arising from the registration of 18 parcels of land in the names of the 1st Defendant and the deceased father of the 2nd Defendant following land adjudication in Embu. The Plaintiffs, claiming to be members of the Miugu family of the Gakenda clan, sought declarations that the Defendants held the parcels in trust for the family, an order for sub-division among family members, and consequential reliefs. The 1st Defendant denied the claim, pleaded first-registration indefeasibility and res judicata; the 2nd Defendant admitted family representation but denied fraud or breach of trust. The Interested Party, joined under Order 1 Rule 10, claimed 30 acres out of parcel Embu/Gangara/371 on the basis of an agreement dated 21st January 2010. Framing seven issues, the court found that the 1st Defendant had represented the Miugu family during adjudication, that the Plaintiffs were family members, and that the 1st Defendant was registered in trust notwithstanding first registration, applying the Supreme Court's decision in M'Inanga Kiebia v Theuri on customary trust as an overriding interest. The Interested Party's claim was proved on the strength of the 2010 agreement. The Plaintiffs' suit was allowed in terms of prayers (b), (c) and (e) of the further amended plaint; the injunction, alternative registration and general damages prayers were declined, damages having not been pursued. The Interested Party's counterclaim was allowed. Costs of both suits were awarded against the 1st Defendant.

Key legal issues

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01

Whether the 1st Defendant was a representative of the Miugu family during land adjudication

Holding

Yes; he conceded representing the Gakenda clan and Miugu family in several cases during the adjudication process

Reasoning

Although the 1st Defendant's defence denied representation and put the Plaintiffs to strict proof, he changed position in his witness statements and at trial conceded that he indeed represented the Gakenda clan and the Miugu family in several cases during land adjudication. The Plaintiffs' witnesses corroborated that both Defendants were such representatives. The court was satisfied on the material on record that the 1st Defendant was such a representative.

02

Whether the Plaintiffs are members of the Miugu family of Gakenda clan

Holding

Yes; the Plaintiffs proved membership and the 1st Defendant's handwritten list was not conclusive

Reasoning

The 1st Defendant produced a handwritten list of 56 claimed family members drawn from Minister's Appeal Case No. 995 of 1985, but the list was apparently generated by himself and its authenticity was not demonstrated. The court accepted PW3, the Chief of Muminji location, as a credible and truthful witness who had handled a 1998 dispute resolved by the 1st Defendant giving back some suit properties to family members, and disbelieved the 1st Defendant as evasive.

p. 3
03

Whether the 1st Defendant was registered as absolute owner or in trust for the Miugu family

Holding

He was registered in trust for the members of the Miugu family notwithstanding first registration indefeasibility

Reasoning

Applying the Supreme Court's decision in M'Inanga Kiebia v Isaaya Theuri M'Lintari, the court held that customary trust depends on the nature of the holding and the parties' intention, and that a trust is an overriding interest binding a first registered proprietor without being noted in the register. Evidence showed the 1st Defendant acknowledged acting on behalf of the family in the adjudication appeals, and that the Defendants amassed over 600 acres at the expense of family members, some living as squatters.

p. 4
04

Whether the Interested Party proved his claim of 30 acres out of parcel Embu/Gangara/371

Holding

Yes; the agreement of 21st January 2010 bound the Defendants to excise and transfer his portion

Reasoning

The Interested Party proved that during adjudication part of his land was combined with parcel 371, and produced an agreement dated 21st January 2010 in which the Defendants acknowledged his portion within parcel 371 would be surveyed and transferred to him. The 1st Defendant initially disowned but later admitted signing the agreement without alleging trickery or duress, and frustrated the survey exercise. The court believed the Interested Party's evidence and found no plausible defence.

p. 4
05

Whether the Plaintiffs and the Interested Party are entitled to the reliefs sought

Holding

Both entitled, save for the Plaintiffs' prayers (a), (d) and (f) which were declined

Reasoning

Having found the 1st Defendant held the suit properties in trust, the Plaintiffs were entitled to the declaratory and sub-division reliefs, and the Interested Party to the reliefs in his counterclaim. The court declined the injunction, the alternative joint-registration order and general damages, the latter having not been pursued.

p. 4

Legal principles established

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  • Whether a registered proprietor holds land in trust for others is a question of fact decided on the evidence, the dealings among the parties and the circumstances of the case, including the intention of the parties
  • A customary trust is an overriding interest that binds a registered proprietor even on a first registration, and need not be noted in the register
  • Costs follow the event under the proviso to Section 27 of the Civil Procedure Act unless the court, for good reason, directs otherwise

Court orders

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  1. 1.The Plaintiffs' suit be and is hereby allowed as prayed in paragraphs (b), (c) & (e) of the further amended plaint amended on 20th March 2006 (declaration of trust, sub-division of the parcels, and entry declaring the Defendants hold the parcels in a fiduciary capacity as trustees)
  2. 2.The Interested Party's suit, treated as a counterclaim, be and is hereby allowed in terms of prayer (a) of the plaint dated 28th October 2015
  3. 3.The Plaintiffs' reliefs sought in paragraphs (a) (d) and (f) of the further amended plaint are declined (permanent injunction, alternative order for joint registration, and general damages for breach of trust)
  4. 4.The 1st Defendant in this suit shall bear the Plaintiffs' costs
  5. 5.The 1st Defendant in Embu ELC No. 338 of 2015 shall bear the Interested Party's costs

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 27 (Cap. 21), proviso
  • Civil Procedure RulesOrder 1 Rule 10
  • Civil Procedure RulesOrder 15 Rule 2
  • Civil Procedure RulesOrder VI
  • Registered Land Act (now repealed)first registration provisions

Cases cited (1)

  • M'Inanga Kiebia Vs Isaaya Theuri M'Lintari & Another
    [2018] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2) of the Constitution (suit concerning title to land and trust); joinder and consolidation under Section 3A of the Civil Procedure Act and Order 1 Rule 10 of the Civil Procedure Rules

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, "Kathendu Kareri & Paul Nguku Ngari v Ita Kiborio & Charles Nthiga Gitumo (Sued as the personal representative of the Estate of Mugo Gitumo (Deceased); Munyi Ngai (Interested Party) (Environment & Land Case 134 of 2014) [2020] KEELC 2034 (KLR)", Case Analysis (2020). E.L.C. Case No. 134 of 2014 (consolidated with Embu ELC No. 338 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2034/eng@2020-02-27

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