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ELCDismissedELC No 32 of 2019· [2021] KEELC 3145 (KLR)

Ndung’u Nguku & another v Kamande Nguku & another [2021] KEELC 3145 (KLR)

Environment & Land Court
26 May 2021
3,290 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a family's land claim because they couldn't prove a customary trust, and their adverse possession claim came seven years too early.

What this practically means

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Executive summary

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The Plaintiffs, claiming under a woman-to-woman Kikuyu customary marriage lineage, sued over land formerly belonging to the late Nyambura Nguku, asserting a customary trust and, alternatively, adverse possession to 5 acres of LOC 17 KAMAHUHA/519, registered in the 1st Defendant's name since 1961. They sought a permanent injunction, cancellation of the subdivisions arising from the suit land, a declaration of ownership of 5 acres, and issuance of a title to the 1st Plaintiff. The 2nd Plaintiff claimed to have purchased 3 acres from the 1st Plaintiff. The 1st Defendant denied the trust, asserting exclusive transfer by the grandmother, and relied on a prior judgment in Nyeri Civil Appeal No. 4 of 1991 which upheld his eviction of the 1st Plaintiff. The court framed four issues. On customary trust, applying the Supreme Court's Kiebia criteria and Juletabi, it held the Plaintiffs failed to prove the trust through evidence, as no proof of the land's pre-registration status was tendered. On res judicata, the court found the trust issue was directly determined in the 1991 appeal decided in 2000, and could be raised as a point of law despite not being pleaded. On adverse possession, the court held the prior eviction orders expired unexecuted after 12 years in 2012 under Section 4(4) of the Limitation of Actions Act, and time began running afresh from 2012; only 7 years had accrued by 2019, so the claim was premature. On the subdivisions, the court found fraud was not proved to the required standard. The suit was dismissed with costs to the Defendants.

Key legal issues

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01

Whether a customary trust existed over the suit land

Holding

No customary trust was proved; the claimant did not adduce tangible evidence of the nature of the land before registration nor how Nyambura acquired it

Reasoning

Applying the Kiebia criteria, the claimant had to show the land was family/clan land before registration and that his relationship was not remote. The court found no evidence of how Nyambura acquired the land, so no presumption of customary trust could be drawn. The burden of proof under Section 107 of the Evidence Act rested on the Plaintiffs, and courts never presume a trust save in absolute necessity.

p. 3
02

Whether the customary trust claim was res judicata

Holding

Yes; the issue of trust was directly determined in Nyeri HCCA No. 4 of 1991 delivered on 18/01/2000

Reasoning

The court examined the judgment in the former suit, which had held that the Plaintiff had not proved registration in trust. Though res judicata was not pleaded in the defence, the court held it could be raised as a point of law at any time, and all elements under Section 7 of the Civil Procedure Act were satisfied conjunctively.

p. 4
03

Whether the Plaintiffs proved title by adverse possession

Holding

No; the claim was premature as only 7 years had accrued

Reasoning

The 1st Defendant's eviction orders expired unexecuted after 12 years in 2012 under Section 4(4) of the Limitation of Actions Act. The court held time does not run during the validity of court orders, so time started running afresh from 2012. The suit filed in 2019 showed only 7 years, short of the mandatory 12 years.

p. 4
04

Whether the subdivisions of the suit land were procedurally done

Holding

The court declined to determine this, finding fraud was not proved to the required standard

Reasoning

Having dismissed the trust and adverse possession claims, the court found it unnecessary to consider the subdivisions. The Land Registrar testified there was no fraud in processing the mutations, though some mutation files were missing from the registry. Fraud was not proved to the required standard.

p. 4

Legal principles established

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  • The burden of proving a customary trust lies on the party asserting it; courts never imply a trust except in cases of absolute necessity
  • Res judicata is a point of law that may be raised at any stage of the proceedings even if not pleaded in the defence
  • Time for purposes of adverse possession does not run during the validity/execution period of a court order, reckoned as 12 years
  • Adverse possession must be proved as peaceful, open and continuous possession without force, secrecy or permission

Court orders

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  1. 1.The Plaintiffs' suit is dismissed
  2. 2.The costs of the suit are awarded in favour of the Defendants
On appeal from
null
null
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (customary trust, adverse possession, title subdivisions)

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, "Ndung’u Nguku & another v Kamande Nguku & another [2021] KEELC 3145 (KLR)", Case Analysis (2021). ELC No 32 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3145/eng@2021-05-26

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