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ELCPartially AllowedOriginating Summons dated 6th July, 2017· [2021] KEELC 1396 (KLR)

Josephine Wanjiru Mithamo v John Kangangi Mithamo & another [2021] KEELC 1396 (KLR)

Environment and Land Court
15 October 2021
2,033 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that land registered in a man's name under customary practice can still belong to the family, awarding a woman one acre.

What this practically means

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Executive summary

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The Plaintiff, by Originating Summons dated 6th July 2017, sought a declaration that she had acquired one acre out of land parcel INOI/THAITA/75 by adverse possession under Section 38 of the Limitation of Actions Act, an order for her registration as absolute proprietor of that portion, and alternatively an estoppel against the Defendants denying her title. She testified that the 1st Defendant, her step-brother, was registered as proprietor of the clan land to hold it in trust for the family because women could not be registered under Kikuyu customary law, and that she and her deceased mother lived on and utilised about one acre until her mother's death in 2006. The 1st Defendant denied the relationship, asserting he was allocated the land absolutely as an adult contributor to the clan, that the Plaintiff's mother merely lived there on licence, and that the Plaintiff had long settled on her own parcel elsewhere. The court framed three issues: trust, adverse possession, and costs. Applying the Supreme Court's test in Isack M'inanga Kiebia, it found the customary trust established: the Defendant's account of his paternity was unsupported, while the Plaintiff's testimony was corroborated by the Clan Chairman. The adverse possession claim was held untenable given the finding of trust. Judgment was entered for the Plaintiff: a declaration of trust over parcel INOI/KERUGOYA/75, an order that one acre be transferred and registered in her name, rectification of the register by the Land Registrar Kirinyaga County, and each party to bear her own costs. A 30-day stay of execution was granted.

Key legal issues

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01

Whether the 1st Defendant held the suit land in trust for the family

Holding

Yes - the 1st Defendant was registered to hold the clan land in trust for himself and the family members, including the Plaintiff, since women could not be registered under Kikuyu customary law

Reasoning

The court applied the five-element test for customary trust laid down by the Supreme Court in Isack M'inanga Kiebia. It found it undisputed that the parties belong to the Umbui clan and that the 1st Defendant received the land by virtue of that membership. The Defendant's claim that his father was Ngunga Gachungu, not Mithamo Gachungu, was unsupported by any witness or document. The Plaintiff's testimony was corroborated by the Clan Chairman (PW3), and the surname in the Defendant's identity certificate confirmed the paternal link.

p. 3
02

Whether the Plaintiff acquired one acre by adverse possession

Holding

No - having found a trust, the court found the alternative adverse possession claim untenable

Reasoning

The court held that where a registered proprietor holds land in trust for family members, a claim in adverse possession against that proprietor is not the appropriate route; the trust claim sufficed to grant relief. The court therefore declined to grant the declaration sought under Section 38 of the Limitation of Actions Act, instead ordering transfer of one acre pursuant to the trust.

p. 3

Legal principles established

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  • Registration of a male family member in place of women, who under Kikuyu customary law could not be registered as land proprietors, gives rise to a customary trust in favour of the family
  • A party who alleges must prove; uncontradicted assertions unsupported by witnesses or documents fail
  • The test for proving customary trust as set out by the Supreme Court in Isack M'inanga Kiebia v Isaaya Theuri M'lintari

Court orders

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  1. 1.A declaration that the Defendants hold the suit property land parcel No. INOI/KERUGOYA/75 in trust for the family including the Plaintiff
  2. 2.An order for determination of trust by directing that one acre out of land parcel No. INOI/KERUGOYA/75 be transferred and registered in the name of the Plaintiff
  3. 3.The Land Registrar Kirinyaga County to rectify the register to reflect the changes
  4. 4.Stay of execution for 30 days

Authorities

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Legislation

  • Limitation of Actions ActSection 38 (Cap 22, Laws of Kenya)

Cases cited (2)

  • Mtaana Lewa Vs Kahadndi Ngala Mwangandi
    (2005) e KLR
  • Isack M'inanga Kiebia Vs Isaaya Theuri M'lintari & another
    [2018] e KLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes, including claims under Section 38 of the Limitation of Actions Act (Cap 22)

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, "Josephine Wanjiru Mithamo v John Kangangi Mithamo & another [2021] KEELC 1396 (KLR)", Case Analysis (2021). Originating Summons dated 6th July, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1396/eng@2021-10-15

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