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ELCPartially AllowedNot stated in the judgment· [2020] KEELC 3609 (KLR)

Kenneth Kirema Munen & another v Harriet Ntakira Matiri & another [2020] KEELC 3609 (KLR)

Environment and Land Court
10 February 2020
LML.N. MBUGUAECE.C. CHERONO
3,107 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Meru court ruled that land registered in a family member's name can still be held in trust, and ordered the parcel shared equally among the deceased owner's children.

What this practically means

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Executive summary

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This was a first-instance land suit heard by the Environment and Land Court at Meru, arising from a plaint dated 24th July 2009. The Plaintiffs, claiming to be sons born out of wedlock of the late Josphat Munene, sued the 1st Defendant (their alleged grandmother) and the 2nd Defendant (their alleged step brother), seeking transfer of two-thirds of Land Parcel ABOTHUGUCHI/KITHIRUNE/2150 or their inclusion in the title, plus general damages for breach of trust, costs and interest. They contended that the parcel, a subdivision of the ancestral ABOTHUGUCHI/KITHURUNE/100, was registered in the Defendants' names to hold in trust for their late father's family, and that the Defendants' consent in NKubu SPMCC No. 40 of 2008 to divide the land equally between themselves breached that trust. The Defendants denied knowing the Plaintiffs and denied the land was ancestral, arguing the grandchildren had no entitlement under Part V of the law of succession and that the ELC lacked jurisdiction over a succession claim. The court framed two issues: whether the Plaintiffs established their relationship with the Defendants, and whether the Defendants held the land in trust for them. Relying on birth certificates, the uncontradicted testimony of PW2 and PW3, and the authorities on customary trust as an overriding interest notwithstanding registration, the court found both issues proved on a balance of probabilities. The suit was allowed, with each party bearing their own costs, and the subject parcel was directed to be divided equally among the children of the late Josphat Munene. No damages were awarded.

Key legal issues

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01

Whether the Plaintiffs established their relationship with the Defendants

Holding

The Plaintiffs proved on a balance of probabilities that they are sons of the late Josphat Munene, son of the 1st Defendant and father of the 2nd Defendant, through birth certificates and uncontroverted testimony.

Reasoning

The Plaintiffs produced their birth certificates which prima facie showed they were children of Josphat Munene, the 1st Defendant's son. PW2, brother of the deceased and son of the 1st Defendant, confirmed the relationship. The Defendants adduced no evidence to counter the documentary evidence, so the fact was proved to the required standard of balance of probabilities.

p. 3
02

Whether the Defendants held the suit land in trust for the Plaintiffs

Holding

Yes. The registration of the Defendants as proprietors of the suit parcel was made in trust for the family of the late Josphat Munene, and the Plaintiffs are entitled to a share.

Reasoning

Customary trust is an overriding interest recognised under the registration statutes (sections 27, 28 and 30 of the Registered Land Act as applied through the Land Registration Act, 2012). The evidence of PW2 and PW3 established that the grandfather subdivided the original parcel and directed that the subject parcel be registered in the Defendants' names to cater for the deceased's family. The Defendants' contrary account did not displace the Plaintiffs' case on a balance of probabilities.

p. 4

Legal principles established

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  • Customary trust is an overriding interest on registered land recognised under the land registration statutes; registration of land in a proprietor's name does not extinguish customary trust rights.
  • The burden of proof in a civil claim is on the plaintiff on a balance of probabilities, and only evidence of facts pleaded is admissible in discharge of that burden.

Court orders

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  1. 1.The Plaintiffs' suit is allowed
  2. 2.The subject parcel of land (ABOTHUGUCHI/KITHIRUNE/2150) is to be divided equally among the children of the deceased Josphat Munene
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Land Registration ActSections 27, 28 and 30
  • Registered Land Act (Cap 300)Sections 28, 30 and 126(1)
  • Law of Succession ActPart V
  • Evidence ActSection 116

Cases cited (7)

  • George Mbiti Kiebia & Another Vs Isava Theuri M’Lintari & Another
    (2014) eKLR
  • Yusuf Namayi and Cleophas Amutala Namayi and Judith Were
    Succession Cause No. 457 of 2005
  • Kanyi Vs Muthiora
    (1984) KLR 712
  • Gathiba Vs Gathiba
    Nairobi HCCC No. 1647/84
  • Peter Gitonga Versus Francis Maingi M’ikiara
    MERU H.C.C.C No. 146 of 2000
  • Mbui Vs Mukangu Vs Gerald Mutwiri Mbui
    C.A No. 281 of 2000
  • Wareham t/a A.F Wareham & 2 others Vs Kenya Post Office Savings Bank
    (2004) 2 KLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (suit filed by plaint in the ELC)

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, "Kenneth Kirema Munen & another v Harriet Ntakira Matiri & another [2020] KEELC 3609 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3609/eng@2020-02-10

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