Rael Karoki Kirinya & another v Grace Gapunge & 3 others [2020] KEELC 2968 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Existence of trust over parcel 1651
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
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.
Breach of trust by the 2nd appellant
The 2nd appellant breached the trust by alienating parcels to Paul Kinoti and Japhet Kimathi and delaying transfer to the 1st respondent
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.
Fraud against the 1st respondent
Fraud was not proved; the claim that the 1st respondent altered mutation forms was hollow
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.
Lis pendens / sales during pendency of suit
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
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.
Quantum of the 1st respondent's entitlement
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
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.
Good title of the purchasers
The 2nd to 4th respondents hold good titles free from fraud
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.
Legal principles established
#- 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
#- 1.Appeal dismissed; decision of the trial court upheld with variation
- 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.Remainder of the land to be held in terms directed by the trial magistrate
- 4.2nd appellant condemned to pay half costs of the appeal and half costs in the lower court to the respondents
- 5.Orders of injunction, inhibition and stay of execution in respect of the suit parcels discharged
- 6.Stay of this judgment granted for 60 days
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.