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ELCDismissedELC Case No. 86 of 2017· [2020] KEELC 2397 (KLR)

Jackson Mwangangi King’oe v Muthiani King’oe & another [2020] KEELC 2397 (KLR)

Environment and Land Court of Kenya
28 May 2020
MGMbogo C. G.
2,304 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a son's claim over family land because the buyer of the sold portion was never joined to the case.

What this practically means

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Executive summary

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The plaintiff, Jackson Mwangangi King’oe, sued his brother (1st defendant) and mother (2nd defendant) over plot No. 164 Thange Settlement Scheme, which was registered in the 2nd defendant's name during adjudication to hold in trust for her sons. He sought a permanent injunction against further sale or dealing with the plot, general damages for its alleged destruction during the sale process, and costs, complaining that the defendants sold a portion without his consent. The defendants denied selling any portions, asserted that the land was registered in the 2nd defendant's name, and contended that the 1999 family meeting concerned subdivision among the sons. At hearing, the plaintiff testified that the plot was initially allotted in his name and that he asked for registration in his mother's name in trust; his witness (PW1) recounted the 1981 clan subdivision by their late father. The 1st defendant testified that he sold only the portion allocated to him, which he had first offered to the plaintiff, with the 2nd defendant's permission. Only the plaintiff filed submissions, citing the customary trust decision in Isack M’inanga Kiebia v Isaaya Theuri M’lintari & Another. The court, framing the sole issue as whether the plaintiff was entitled to the orders sought, held that the buyer of the sold portion was a known but necessary party who was never joined, and no one may be condemned unheard. The plaintiff having failed to establish a cause of action, the suit was dismissed with each party bearing their own costs to promote family harmony.

Key legal issues

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01

Whether the Plaintiff is entitled to a permanent injunction and damages over the sale of a portion of plot No. 164 Thange Settlement Scheme

Holding

The Plaintiff's case fails because the purchaser of the sold portion, a necessary party, was not joined, and the Plaintiff did not controvert that the 1st Defendant sold the portion allocated to him after offering the Plaintiff first priority to buy it.

Reasoning

The court accepted that the suit land is family/ancestral land registered in the 2nd Defendant's name. However, the evidence showed the sold portion was bought by a stranger to the proceedings who was known but not sued. Since no one shall be condemned unheard, no finding adverse to the Defendants could be made without that buyer's evidence. The Plaintiff also failed to rebut the 1st Defendant's claim that he sold only the portion allocated to him after offering it first to the Plaintiff. The claim therefore lacked a cause of action.

02

Whether plot No. 164 is family/ancestral land subject to a customary trust

Holding

The court accepted, without contest, that plot No. 164 Thange Settlement Scheme is family and/or ancestral land, but no trust finding was ultimately made because the claim failed on the joinder ground.

Reasoning

The court found no doubt that the plot is family and/or ancestral land and that it is registered in the 2nd Defendant's name, though title appears not yet issued. Plaintiff's counsel relied on the Kiebia decision on customary trusts to urge a trust finding, but the court narrowed the issues to whether the Plaintiff was entitled to the orders sought, and dismissed the suit on the failure to join the buyer rather than on the trust question.

p. 3

Legal principles established

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  • A party with an interest in the subject matter of a land dispute, such as a purchaser of a portion of the suit land, is a necessary party who must be joined before orders affecting them can be made; no one shall be condemned unheard.
  • A customary trust, if proved, binds a first registered proprietor under the proviso to Section 28 of the (repealed) Registered Land Act, and the categories of customary trust are not closed.

Court orders

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  1. 1.Dismissal of the Plaintiff's case
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Registered Land Act (repealed)Section 28 (proviso)

Cases cited (1)

  • Isack M’inanga Kiebia v Isaaya Theuri M’lintari & Another
    [2018] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land (Environment and Land Court Act); no specific constitutional or statutory article is invoked 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, "Jackson Mwangangi King’oe v Muthiani King’oe & another [2020] KEELC 2397 (KLR)", Case Analysis (2020). ELC Case No. 86 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2397/eng@2020-05-28

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