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ELCDismissedMeru ELC Case (plaint filed 2.3.2010; number not stated in judgment)

Bridget Riara Eustus & 5 others v Eustus Kirimi M’aburi [2021] KEELC 1966 (KLR)

Environment and Land Court
22 September 2021
1,489 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Meru dismissed a family's claim that their father held land in customary trust for them, because they failed to prove the land was inherited ancestral land.

What this practically means

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Executive summary

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This was a first-instance family land dispute before the Environment and Land Court at Meru, decided by Hon. Lucy N. Mbugua (ELC Judge) on 22 September 2021. The plaintiffs, the defendant's wife and children, sued by plaint filed on 2 March 2010 claiming that land parcel Abogeta/Lower Kiungone/220 was ancestral land registered in the defendant's name in trust for the family. The parcel was subdivided into four (757-760) in 1990; the defendant transferred parcel 758 to the 2nd plaintiff, but the plaintiffs alleged he was threatening to alienate the remaining parcels. They sought a permanent injunction restraining alienation and a re-sharing/registration of the parcels according to a proposed scheme. The defendant, who testified after the plaintiffs closed their case (his defence having gone missing from the court file), contended that he bought the land, that he had already given the plaintiffs four acres, and that no law compels parents to subdivide land for children. The court held that a customary trust must be proved and found no cogent evidence that the defendant inherited the land from his father; the only green card availed related to parcel 760, not mother title 220. The court also noted that the 2nd and 3rd plaintiffs had already been given parcels 758 and 757 respectively. The suit was dismissed with each party bearing their own costs, the court observing this was a family dispute. Judgment was delivered via email pursuant to COVID-19 practice directions.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the suit land was ancestral land registered in the name of the defendant in trust for the plaintiffs (customary trust)
  2. 2.Whether the plaintiffs proved a customary trust entitling them to the relief sought
  3. 3.Whether the plaintiffs were entitled to a permanent injunction restraining the defendant from alienating parcels 757, 759 and 760

Key legal issues

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01

Whether the defendant held the suit land in customary trust for the plaintiffs

Holding

The plaintiffs failed to prove the customary trust; there was no evidence that the land was ancestral or inherited from the defendant's father

Reasoning

The court perused the documents availed by the plaintiffs and found that none demonstrated how the land came into the defendant's hands from his father. The only green card showing registration history was that of parcel 760, not the mother title 220. The defendant himself contended he bought the land. The court therefore found the ancestral/customary trust claim unsubstantiated and dismissed the suit, noting the 2nd and 3rd plaintiffs had already been given parcels 758 and 757 respectively.

p. 2

Legal principles established

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  • A claim of trust, including customary trust, must be proved by evidence

Court orders

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  1. 1.The plaintiffs' suit is dismissed
  2. 2.Each party to bear their own costs of the suit, this being a family dispute

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute relating to title to land (Abogeta/Lower Kiungone parcels)

Relief refused

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Permanent injunction restraining the defendant from selling, charging, leasing or interfering with L.R Nos. Abogeta/Lower Kiungone/757, 759 and 760 and the proposed re-sharing/registration of the parcels

The claim of customary trust was not proved; no cogent evidence that the defendant inherited the land from his father

p. 2

Costs

Each party to bear their own costs of the suit

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I find that the plaintiffs claim has not been established. The same is hereby dismissed. This being a family dispute then I direct each party to bear their own costs of the suit.
p. 2Final orders - dismissal and costs
I find that there is no cogent evidence to show that defendant inherited the land such that the same can be termed as ancestral land.
p. 2Failure to prove customary/ancestral trust
Trust, including customary trust must be proved
p. 2Burden of proving trust

Issues in the judgment

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minor

The statement of defence is dated 29.3.2020 but allegedly filed on 31.3.2010, an apparent date contradiction

minor

The names of the plaintiffs are not fully set out in the judgment; only some are identified by name (Bridget Riara Eustus, Edwin Marangu, Washington Kimathi) from the proposed sharing

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, "Bridget Riara Eustus & 5 others v Eustus Kirimi M’aburi [2021] KEELC 1966 (KLR)", Case Analysis (2021). Meru ELC Case (plaint filed 2.3.2010; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1966/eng@2021-09-22

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