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ELCPartially AllowedMakueni ELC Suit (amended plaint dated 03rd April, 2008)· [2020] KEELC 2372 (KLR)

Joseph Kisilu Nzau v Munyasya Nzau Kilomo [2020] KEELC 2372 (KLR)

Environment and Land Court
28 May 2020
3,870 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled family land taken unequally by a registered relative is held in trust, and such claims face no time limit.

What this practically means

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Executive summary

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The Plaintiff sued the Defendant, his step brother and registered proprietor of Mbooni/Iiani/654 (4.8 Ha), seeking a perpetual injunction, a declaration that a 2-acre portion of that parcel was held in trust for him, and an order for excision and registration. The Defendant denied the trust, alleged the Plaintiff occupied his own parcel 656, and counterclaimed for a permanent injunction. Both parcels were part of the original land of Nzau Kilomo, which was to be shared equally among his three houses, with first-born sons registered as proprietors. The court framed two issues: limitation and entitlement. On limitation, the defence raised for the first time in submissions failed, and the court held following Stephens v Stephens that there is no limitation period for a beneficiary's action to recover trust property converted by the trustee. On the merits, it found the Defendant had himself subdivided the family land unequally during adjudication, taking 4.8 Ha against the Plaintiff's 2.8 Ha. The alleged compensation justification for fighting clan land disputes was never pleaded and was discounted. The court presumed the extra portion was held in customary trust for the Plaintiff, an overriding interest under section 28 of the Land Registration Act. Equalizing the 7.6 Ha total, the court granted judgment with modification: a perpetual injunction over 1.0 hectare of the suit land and a declaration with an excision and registration order in the Plaintiff's favour. The unsupported counterclaim was dismissed. Costs were awarded to the Plaintiff.

Key legal issues

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01

Whether the suit is time barred

Holding

The suit is not time barred; an action by a beneficiary to recover trust property converted by the trustee to his own use is exempt from limitation under section 20(1)(b) of the Limitation of Actions Act

Reasoning

The limitation defence was raised only in submissions, not pleaded. On the law, section 20(1) of the Limitation of Actions Act removes limitation periods for actions by a beneficiary to recover trust property from a trustee who converted it to his own use. Following Stephens v Stephens, the court held no limitation applies to such recovery actions. The Plaintiff's claim fell under sub-section 1(b) as a claim to recover trust property from the Defendant.

p. 4
02

Whether a customary trust existed over the extra portion of the suit land

Holding

Yes. The Defendant subdivided the family land unequally during adjudication, giving himself 4.8 Ha against the Plaintiff's 2.8 Ha, and the extra portion is presumed held in customary trust for the Plaintiff

Reasoning

It was not disputed that the suit land was originally family land of Nzau Kilomo, to be shared among his three houses equally, with first-born sons registered as proprietors. The Defendant conducted the subdivision himself and took a larger portion. The alleged justification of compensation for defending the family land was never pleaded and was introduced only in cross-examination, so it could not stand. The unequal division gave rise to a customary trust, an overriding interest under section 28 of the Land Registration Act.

p. 5
03

The extent of the trust property to be excised

Holding

The court equalized the two parcels, directing excision of 1.0 hectare from the 4.8 Ha suit land so both households hold 3.8 Ha

Reasoning

The suit land measured 4.8 Ha and the Plaintiff's parcel 656 measured 2.8 Ha, totalling 7.6 Ha. Dividing equally gives 3.8 Ha per household. The Defendant's estate was ordered to excise 1.0 Ha. This modified the Plaintiff's prayer for 2 acres. The court found the Plaintiff had proved the customary trust and was entitled to the plaint prayers with modification.

p. 5
04

The Defendant's counterclaim

Holding

The counterclaim was dismissed because the Defendant adduced no evidence in support of it

Reasoning

The Defendant had counterclaimed for a permanent injunction against the Plaintiff's interference with the suit land. However, the Defendant's legal representative produced no evidence in support of the counterclaim at trial, nor did the parties pursue it. The court dismissed the counterclaim with costs to the Plaintiff.

p. 5

Legal principles established

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  • There is no limitation period for actions by a beneficiary to recover trust property converted by the trustee for his own use under section 20(1)(b) of the Limitation of Actions Act
  • A limitation defence raised for the first time in submissions, without pleading, cannot succeed as submissions are not pleadings
  • Where family land is subdivided unequally by the registered first-born son without justification, he is presumed to hold the extra portion in customary trust for the other household, such trust being an overriding interest under section 28 of the Land Registration Act

Court orders

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  1. 1.A perpetual order of injunction against the Defendant, his sons, agents or servants from evicting the Plaintiff, cutting trees, selling or in any way dealing with a portion measuring 1.0 hectares in land parcel No. Mbooni/Iiani/654
  2. 2.Declaration that a portion measuring approximately 1.0 hectares within Mbooni/Iiani/654 belongs to the Plaintiff and an order directed to the Land Registrar, Makueni to excise the portion and register it under the name of the Plaintiff
  3. 3.Costs of the suit to the Plaintiff
  4. 4.The defence and counterclaim dismissed with costs to the Plaintiff

Authorities

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Legislation

  • Land Registration Actsections 25, 28
  • Registered Land Act (repealed)sections 28, 30(g)
  • Limitation of Actions Actsection 20

Cases cited (3)

  • Alice Wairimu Macharia –vs– Kirigo Philip Macharia
    (2019) eKLR
  • Isaac M'Inanga Kiebia –vs– Isaaya Theuri M'Lintary & Anor
    (2018) eKLR, Supreme Court Petition No. 10 of 2015
  • Stephens & 6 Others –vs– Stephens & Anor
    Civil Appeal No. 18 of 1987
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land registered under the Land Registration 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, "Joseph Kisilu Nzau v Munyasya Nzau Kilomo [2020] KEELC 2372 (KLR)", Case Analysis (2020). Makueni ELC Suit (amended plaint dated 03rd April, 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2372/eng@2020-05-28

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