Jane Wanjiru Ndungu & another v Eunice Wanjiku Munene & 2 others [2021] KEELC 4028 (KLR)
The bottom line
#A family land claim failed because the claimants couldn't prove a customary trust or their relationship to the deceased, and were ordered evicted.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit land was ancestral clan land subject to a customary trust
Not proved; plaintiffs led no evidence of clan allocation at demarcation and did not identify the family, clan or group
The plaintiffs averred the land was clan-given but called no witness from the demarcation and did not disclose the clan. The court relied on Mbothu v Waititu that trusts are never presumed and on the Supreme Court's five elements of customary trust, none of which were established.
Whether Mary Wathoko was a wife of Munene Kigundu
Not proved; the defence account that she was a sister of the 1st defendant accommodated after marital problems was more probable
Mary Wathoko and Eunice Wanjiku Munene were blood sisters. The court doubted capacity under Kikuyu Customary Law for sisters to marry the same husband and noted absence of family consent, dowry (Ruracio) or Ngurario. Burial on the land did not confer proprietary rights.
Whether the claim lay in the Environment and Land Court
No; a claim as beneficiaries of an intestate estate should be pursued in a succession cause under Section 51(2)(g) of the Law of Succession Act
Since the plaintiffs grounded their claim on being daughter and grandson of the deceased registered proprietor, identification of true beneficiaries of an intestate estate is for the Succession Court, which the ELC is not competent to undertake.
Whether the counter-claim for eviction and permanent injunction was proved
Yes, on a balance of probabilities; plaintiffs were found to be mere licencees
Having failed to establish any trust or beneficial interest, the plaintiffs had no proprietary rights over the sub-divided parcels, and the defendants' evidence was found credible.
Legal principles established
#- Customary trust must be proved by cogent evidence, not assumption; the legal burden rests on the party asserting the trust
- Courts will not imply a trust save in cases of absolute necessity; intention to create a trust must be clearly determined
- Disputes as to paternity of a deceased registered proprietor and validity of an alleged marriage fall within the jurisdiction of the Succession Court, not the Environment and Land Court
Court orders
#- 1.The plaintiffs suit is hereby dismissed
- 2.The defendants counter-claim has been proved on the required standard
- 3.Eviction and permanent injunction orders are granted as prayed in the counter-claim
- 4.Each party to bear their own costs
- Jurisdiction invoked
- Environment and Land Court jurisdiction over trust claims relating to land; court held paternity and marriage validity questions reserved for the Succession Court under the Law of Succession Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jane Wanjiru Ndungu & another v Eunice Wanjiku Munene & 2 others [2021] KEELC 4028 (KLR)", Case Analysis (2021). Not stated in judgment (plaint filed 2nd October 2014, Kerugoya). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4028/eng@2021-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.