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ELCDismissedMachakos ELC Case (Plaint dated 1st December 2015)· [2020] KEELC 2609 (KLR)

Margaret Omoroje & 7 others v Johnson Kitheka Kathenge & 6 others [2020] KEELC 2609 (KLR)

Environment and Land Court
8 May 2020
OAO.A. Angote
3,631 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Machakos Environment and Land Court dismissed siblings' land claim because they produced no solid evidence proving a customary family trust over the disputed parcels.

What this practically means

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Executive summary

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The Plaintiffs, children of the late Paul Kathenge Kisithe, sued the 1st Defendant (their eldest brother), his sons, wives and two third parties, claiming that between 1990 and 2013 the 1st Defendant caused parcels of family land at Kisasi - including plots 1262, 1265, 1266, 1267, 1268, 1269, 342, 347, Kisasi/Kimuuni/81 and Kisasi Plot 17 - to be registered in his name and in the names of his family members to their exclusion. They sought declarations of customary trust and rectification of the register so that the parcels would be registered in the names of the Plaintiffs and the 1st Defendant. The Defendants never filed a defence, but their counsel argued in submissions that the Plaintiffs lacked locus standi absent letters of administration, that the claim was time barred, and that no customary trust was pleaded or proved. The court held that limitation does not apply to customary trusts, relying on Macharia Kihari v Ngigi Kihari and Stephens v Stephens. However, applying the Supreme Court's framework in Isack M'inanga Kiebia v Isaaya Theuri M'lintari, it found that the Plaintiffs failed to prove that the suit properties were family land before registration or that they belonged to their deceased father, mother or step-grandmother; abstracts of title alone, and the evidence of two clan elders, were insufficient. The court dismissed the Plaintiffs' suit on a balance of probabilities, awarding costs to the Defendants.

Key legal issues

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01

Whether the claim is time barred

Holding

Limitation of Actions Act does not apply to customary trusts

Reasoning

Relying on Court of Appeal decisions in Macharia Kihari v Ngigi Kihari and Stephens v Stephens, the court held that limitation prescribed under Section 20(2) of the Limitation of Actions Act does not apply to trusts arising under customary law, where land may be held in trust for decades before any formal division.

p. 4
02

Whether the Plaintiffs proved a customary trust

Holding

They did not; the trust was neither pleaded with specificity nor proved by evidence

Reasoning

Applying the Supreme Court's elements in Isack M'inanga Kiebia v Isaaya Theuri M'lintari, the court found the Plaintiffs failed to establish that the suit properties were family, clan or group land before registration, or that they belonged to their deceased relatives. The clan elders' evidence added no value and abstracts of title alone were insufficient.

p. 5
03

Whether the Plaintiffs proved ownership of the suit parcels by the deceased

Holding

They did not

Reasoning

Although the Plaintiffs asserted that their father owned ten acres at Kisasi market, no mutation or proceedings from the earlier suit were produced to show how the plots were created or that the land belonged to the deceased. Parcels 1267 and 1265 were first registered in favour of strangers to the family.

p. 5
04

Locus standi without letters of administration

Holding

Not decisively determined

Reasoning

The Defendants argued the Plaintiffs could not sue over a deceased person's estate without a grant, but the court did not rest its decision on this objection; instead it dismissed the suit on the merits for failure to prove the customary trust claimed.

p. 3

Legal principles established

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  • Limitation under the Limitation of Actions Act does not apply to trusts arising under customary law
  • A customary trust, if proved, is one of the overriding interests to which a first registered proprietor is subject, and its categories are not closed; it must be established by evidence
  • Not every claim to land qualifies as a customary trust; the essential elements include family/clan land before registration, membership of the family and a claim against a registered family member

Court orders

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  1. 1.The Plaintiffs' suit is dismissed
  2. 2.The Plaintiffs to pay costs of the suit

Authorities

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Legislation

  • Limitation of Actions ActSection 20(2)
  • Registered Land ActSection 28 (proviso)

Cases cited (4)

  • Isack M'inanga Kiebia vs. Isaaya Theuri M'lintari and Isack Ntongai M'lintari
    (2018) eKLR
  • Macharia Kihari vs. Ngigi Kihari
    Civil Appeal No. 170 of 1993; (1994) eKLR
  • Stephens & 6 Others vs. Stephens & Another
    Civil Appeal No. 18 of 1987
  • Kiarie v. Kinuthia
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over trust claims relating to registered land (Article 162(2)(b) of the Constitution, Environment and Land Court Act) as invoked by the Plaint dated 1st December 2015

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, "Margaret Omoroje & 7 others v Johnson Kitheka Kathenge & 6 others [2020] KEELC 2609 (KLR)", Case Analysis (2020). Machakos ELC Case (Plaint dated 1st December 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2609/eng@2020-05-08

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