In re Estate of Mugwika Rimberia (Deceased) [2021] KEELC 2003 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata and an abuse of process
The court found no res judicata: the customary trust issues had never been conclusively heard and determined by a competent court; the High Court succession application only addressed whether Alfred Bundi was a beneficiary/dependant under sections 26 or 29 of the Law of Succession Act
Applying the Supreme Court's test in the IEBC v Maina Kiai case, the court noted the customary trust questions in the originating summons had not been conclusively determined. The High Court in the revocation proceedings made no findings on customary trust as overriding interests, particularly on questions 4-12. The suit was therefore neither res judicata nor vexatious, though it overlapped with earlier matters.
Whether the suit is sub judice under section 6 of the Civil Procedure Act
Although the matter was not res judicata, the court stayed the suit pending determination of the related Court of Appeal matter involving the same subject land
The court acknowledged three intertwined disputes - succession, commercial and customary trust - spread across different courts at different stages. Guided by Kiama Wangai, Nguruman and KCB v Muiri Coffee Estate, where courts in similar scenarios stayed one pending suit, the court exercised its discretion to stay the instant suit until the appeal was determined.
Whether inhibition/injunctive relief should issue pending determination
In lieu of an injunction, the court ordered the status quo to be maintained, with no precipitate adverse action by the respondents, until the appeal is heard and determined
Section 68(1) of the Land Registration Act confers discretion to inhibit registration of dealings. Given the impending auction over land on which the applicants claim customary trust rights and actual occupation, and given the stay of the suit, the court found it in the interest of justice to preserve the property, citing the Court of Appeal's call for a measure of protection over suit property in Alice Karuru Kithinji v Gideon Kithinji Limberia.
Legal principles established
#- Customary trusts are overriding interests protectable under section 28 of the Land Registration Act, 2012
- Kimeru customary law claims must be applied and given effect by the court under Article 2(4) of the Constitution, section 3(2) of the Judicature Act and section 28 of the Land Registration Act
- Section 68(1) of the Land Registration Act gives the court discretion to order inhibition of registration of any land, lease or charge to preserve property or allow the matter to be heard and decided
Court orders
#- 1.The instant suit is stayed until the appeal (Nyeri Civil Appeal No. 41 of 2021, Alfred Mwiti Bundi v Janet Kirungi M'Mugwika and 5 others) is heard and determined
- 2.The status quo subsisting at the time of the ruling is to continue until the hearing and determination of the appeal, with no precipitate adverse action by the respondents over the subject property
- 3.Costs shall be in the cause
- Jurisdiction invoked
- Environment and Land Court jurisdiction; claim founded on customary trust as an overriding interest under section 28 of the Land Registration Act, 2012, applied with Article 2(4) of the Constitution and section 3(2) of the Judicature Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of Mugwika Rimberia (Deceased) [2021] KEELC 2003 (KLR)", Case Analysis (2021). Meru ELC Originating Summons dated 22.3.2021 (with Notice of Motion dated 22.2.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2003/eng@2021-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.