Jakubu M’miriti M’amundi v Patrick Gitonga Kirimi [2020] KEELC 3639 (KLR)
The bottom line
#Kenyan courts can order a father to share ancestral family land with his son during his lifetime because registration does not defeat customary trust.
What this practically means
#Executive summary
#Key legal issues
#Whether a customary trust claim must be specifically pleaded
Trust was pleaded and particularized in the amended plaint, so the trial magistrate did not err in determining it
The court examined the amended plaint and found paragraphs 5 and 10 pleaded and particularized the trust. The appellant's contention that the trust claim was not pleaded was therefore rejected, and the trial magistrate was entitled to determine the customary trust claim.
Whether the appellant held the suit land in customary trust for the respondent and family
Yes; the land was ancestral land first registered in the name of Amundi Riria before passing to the appellant without purchase, creating a customary trust
Applying the Supreme Court's elements of customary trust in M'inanga, the court found the respondent belonged to the family, the land was family/ancestral land, the claim was directed at a registered family member, and the claimant would have been entitled to be registered but for intervening circumstances. The respondent fit the definition of a customary trust claimant.
Whether a father can be compelled to share ancestral land during his lifetime
Yes, where the land is held in customary trust; the appellant had deliberately alienated the land to defeat the respondent's claim
Relying on Mbui Mukangu v Gerald Mutwiri Mbui, the court distinguished cases where a father holds his own land from ancestral land devolved to him. The appellant had subdivided and sold the land during the subsistence of the suit, so he could not resist sharing on the basis that he should not be compelled to share during his lifetime.
Whether the respondent could claim land (parcel No. 106) which no longer existed after subdivision
Yes; the suit was filed when parcel No. 106 was intact and the appellant had taken deliberate steps to alienate it during the suit, so the respondent was entitled to a share of parcel No. 106 or its resultant subdivisions
The green cards showed the respondent had lodged a caution in 2003, and the appellant admitted selling part of the land and subdividing it into 7 portions in 2011 while the suit was pending. The trial magistrate correctly held the appellant held the land in trust for distribution amongst beneficiaries, entitling the respondent to a share of the original parcel or its subdivisions.
Whether the provision of the purchased parcel Abothuguchi/Kiijo/1409 to the respondent defeated the claim
No; the alleged parcel was not ancestral land and there was no evidence it had been transferred to the respondent
The court noted the alleged parcel was purchased (or being purchased) by the appellant, not ancestral land. The respondent's claim was to family land held in trust, not to any inheritance. Further, there was nothing to show the appellant had transferred the purchased land to the respondent.
Legal principles established
#- On a first appeal, the court has a duty to re-evaluate the evidence, assess it and make its own conclusions
- Ancestral land registered in the name of a family member is held in customary trust for subsequent generations, and a father cannot defeat that trust by alienating the land during his lifetime
- A respondent claiming an entitlement under a customary trust is not claiming inheritance such that the father was bound to give him 'any land'; the claim relates to family land held in trust through intergenerational equity
Court orders
#- 1.The appellant's appeal was dismissed
- 2.Costs of the appeal awarded to the respondent
- On appeal from
- Chief Magistrate's Court, Nkubu (Nkubu PMCC No. 66 of 2014, formerly Meru HCCC No. 34 of 2010)
- Nkubu PMCC No. 66 of 2014 (formerly Meru HCCC No. 34 of 2010)
- Jurisdiction invoked
- First appeal to the Environment and Land Court against the decision of the trial magistrate
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jakubu M’miriti M’amundi v Patrick Gitonga Kirimi [2020] KEELC 3639 (KLR)", Case Analysis (2020). Nkubu PMCC No. 66 of 2014 (formerly Meru HCCC No. 34 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3639/eng@2020-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.