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ELCDismissedELC Appeal (Meru) - from Nkubu PMCC No. 92 of 2013 (consolidated with Meru ELC No. 119 of 2013)· [2020] KEELC 2968 (KLR)

Rael Karoki Kirinya & another v Grace Gapunge & 3 others [2020] KEELC 2968 (KLR)

Environment and Land Court
30 April 2020
6,304 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court upheld a family's claim that a mother held inherited land in trust, found she breached it, and ordered her to transfer half an acre to her sister.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Meru against the judgment of the Nkubu Magistrate's Court of 13.12.2018 in consolidated suits (Nkubu PMCC No. 92 of 2013 and Meru ELC No. 119 of 2013) concerning Abothuguchi/Kariene/1651, originally owned by M'Kirinya M'Mworia (deceased), who transferred it to the 2nd appellant in 1999. The trial court had dismissed the appellants' suit, awarded the 1st respondent one acre out of the father's estate, upheld the purchasers' titles, ordered eviction of the appellants from parcel 4412, and directed each party to bear own costs. On appeal, the court re-evaluated the evidence as required in a first appeal. It held that the land was held in trust by the 2nd appellant for the family, but that she breached that trust through serial alienations, including the transfer of parcel 3691 to Japhet Kimathi one day after registration to herself. Fraud against the 1st respondent was not proved to the strict standard required, and the sales of parcels 4411 and 4412 were lawful since the inhibition orders did not cover parcel 3692. The court departed from the trial court's equal half-half sharing, holding the 1st respondent entitled to one acre from the original parcel; having received half an acre (parcel 3692), she was awarded a further half acre out of parcel 3689, failing which the Deputy Registrar to execute the transfer. The appeal was dismissed with variation; the 2nd appellant to pay half costs of the appeal and half costs in the lower court; injunctions and inhibitions discharged with a 60-day stay of the judgment.

Key legal issues

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01

Existence of trust over parcel 1651

Holding

The land was held in trust by the 2nd appellant for the family (the two appellants and the 1st respondent), but the beneficiaries were not to hold their own shares on further trust

Reasoning

All who attended the 6.3.2002 family meeting agreed the deceased directed the 2nd appellant to share the land with her sister, giving her at least 1 acre. The court found the transfer to the 2nd appellant created a family trust, but once shares were allocated, the 1st respondent was free to deal with her own share.

p. 4
02

Breach of trust by the 2nd appellant

Holding

The 2nd appellant breached the trust by alienating parcels to Paul Kinoti and Japhet Kimathi and delaying transfer to the 1st respondent

Reasoning

The green cards showed the 2nd appellant effected the transfers herself; the transfer of parcel 3691 to Japhet Kimathi occurred one day after registration to her, and transfer of parcel 3692 to the 1st respondent came only after suit was filed. These alienations were inconsistent with her fiduciary role.

p. 5
03

Fraud against the 1st respondent

Holding

Fraud was not proved; the claim that the 1st respondent altered mutation forms was hollow

Reasoning

The surveyor PW4 confirmed he subdivided parcel 2910 on the 2nd appellant's instructions and that she signed the mutation forms. The orders of 15.8.2013 related to parcels 3689 and 3690, not 3692, so no breach of any order was shown.

p. 5
04

Lis pendens / sales during pendency of suit

Holding

The 1st respondent committed no illegality; the subdivision and sales of 4411 and 4412 occurred before any status quo order and the inhibition orders did not cover parcel 3692

Reasoning

The inhibition order of 15.8.2013 applied to parcels 3689 and 3690 only. The subdivision of 3692 into 4411 and 4412 occurred on 24.7.2013, before the status quo agreement of 16.4.2014, and counsel failed to clarify its extent.

p. 5
05

Quantum of the 1st respondent's entitlement

Holding

The trial court's equal half-half sharing was departed from; the 1st respondent is entitled to 1 acre from the original parcel 1651, of which she already has half an acre, leaving a further half acre from parcel 3689

Reasoning

Subdivisions had eroded the cumulative acreage (about 2.3 acres remained of the original 3), and transferring another full acre would leave the 1st appellant (the mother) destitute. The claim is founded on trust, not inheritance, as the land ceased to belong to the deceased in 1999.

p. 6
06

Good title of the purchasers

Holding

The 2nd to 4th respondents hold good titles free from fraud

Reasoning

They conducted searches, found no encumbrances, and the 1st respondent's title to parcel 3692 was not obtained fraudulently. The trial magistrate's finding upholding their titles was not disturbed.

p. 6

Legal principles established

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  • A trust is never presumed by the court except in cases of absolute necessity; the intention to create a trust must be clearly determined
  • Allegations of fraud must be strictly proved; something more than a mere balance of probabilities is required
  • In a first appeal the court is duty bound to re-evaluate the facts afresh and come to its own independent findings

Court orders

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  1. 1.Appeal dismissed; decision of the trial court upheld with variation
  2. 2.Trial magistrate's order in point (b) set aside and substituted with an order that the 1st respondent is entitled to 1/2 an acre out of parcel no. 3689 (0.38 ha), to be transferred by the 2nd appellant forthwith, failing which the Deputy Registrar to sign all requisite documents
  3. 3.Remainder of the land to be held in terms directed by the trial magistrate
  4. 4.2nd appellant condemned to pay half costs of the appeal and half costs in the lower court to the respondents
  5. 5.Orders of injunction, inhibition and stay of execution in respect of the suit parcels discharged
  6. 6.Stay of this judgment granted for 60 days

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 rule 1

Cases cited (5)

  • Selle v Associated Motor Boat Co. & others
    [1968] E.A. 123
  • Mbothu & Others vs Waitimu & Others
    1986 K.L.R 171
  • Solomon Amian v. Salome Mutenyo Otunga
    (2016) eKLR
  • Denis Noel Mukhula Ochwada & another vs Elizabeth Murungari Njoroge & another
    (2018) eKLR
  • R.G Patel vs Lalji Makanji
On appeal from
Nkubu Magistrate's Court
PMCC No. 92 of 2013 (consolidated with Meru ELC No. 119 of 2013)
Jurisdiction invoked
First appeal from the Magistrates' Court to the Environment and Land Court under the ELC Act / Civil Procedure 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, "Rael Karoki Kirinya & another v Grace Gapunge & 3 others [2020] KEELC 2968 (KLR)", Case Analysis (2020). ELC Appeal (Meru) - from Nkubu PMCC No. 92 of 2013 (consolidated with Meru ELC No. 119 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2968/eng@2020-04-30

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