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ELCDismissedNyeri High Court Civil Suit No. 20 of 2009 (transferred to Environment and Land Court)· [2022] KEELC 979 (KLR)

Joseph Mithamo Kariuki & another v Nelson Kinyua Muiga & 4 others [2022] KEELC 979 (KLR)

Environment and Land Court
10 March 2022
JOJ. O. Olola
2,329 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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The Nyeri Environment and Land Court dismissed a family land claim because the plaintiffs could not prove a customary trust existed.

What this practically means

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Executive summary

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The two Plaintiffs, brother and sister, sued five Defendants seeking a declaration that the Defendants hold half shares in five parcels of land (Iriaini/Kairia/254; Iriaini/Kairia/233; Iriaini/Kiaguthu/140; Iriani/Kaguyu/220; and Iriaini/Kaguyu/221) in trust for them as beneficiaries of Kaburu Kabaragu, their father, who died in 1956. They sought rectification of the registers, determination of the trust, subdivision and excision, costs and interest. They contended that during land adjudication their grandfather Ngungi's entitlement of about 49 acres was to be shared among his three children's households, and that in the absence of a male heir for Kaburu's household, the parcels were registered in the name of Harun Muiga (father/grandfather of the Defendants) to hold in trust. The Defendants denied the relationship and the trust and raised the Land Adjudication Act dispute-resolution mechanism. The Defendants did not attend the hearing and the suit proceeded undefended. The court, applying Section 107 of the Evidence Act and the Court of Appeal's decision in Peter Ndungu Njenga v Sophia Watiri Ndungu, held that a trust must be proved by evidence and will only be presumed in absolute necessity. The Green Cards contained no reference to any trust; the parcel registered to the Plaintiffs' brother undermined their case; the clan members allegedly behind the trust resolution were not called; and the Plaintiffs' mother, who died in 2008, took no action after the alleged 1966 eviction. The suit was dismissed with no order as to costs.

Key legal issues

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01

Burden of proving a customary trust

Holding

The Plaintiffs failed to discharge the burden of proving the alleged trust; the claim was dismissed despite being an undefended suit

Reasoning

Section 107 of the Evidence Act places the burden on the party asserting facts. The Green Cards showed no reference to any trust on the titles. The clan members said to have resolved that the land be held in trust were not called to testify, and the explanations offered (that the mother could not be registered as a woman; the brother's mental condition) were contradicted or unsupported by evidence.

p. 3
02

Whether a trust should be presumed from the circumstances of registration

Holding

A trust will only be presumed in absolute necessity and where the intention to create it is clearly determined

Reasoning

Following the Court of Appeal in Peter Ndungu Njenga v Sophia Watiri Ndungu, courts will not imply a trust save to give effect to the parties' intention. Here the register was silent on any trust, and the Plaintiffs' own brother had one of the parcels registered in his own name, undermining the alleged clan resolution.

p. 3
03

Whether the claim was belated

Holding

The claim was belated and devoid of merit; the Plaintiffs' mother lived until 2008 and took no action after the alleged 1966 eviction

Reasoning

The death certificate showed the Plaintiffs' mother died on 13th April 2008, eight months before the suit, and no explanation was given for her failure to reclaim the land or seek determination of the alleged trust after the alleged 1966 eviction.

p. 4

Legal principles established

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  • A party alleging a trust must prove its existence through evidence; courts will not readily presume a trust
  • The existence of a customary trust can only be proved by way of evidence

Court orders

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  1. 1.The Plaintiffs' suit is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Evidence ActSection 107
  • Land Adjudication Act (Cap. 284)not specified

Cases cited (1)

  • Peter Ndungu Njenga -vs- Sophia Watiri Ndungu
    (2000) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (suit transferred from the High Court in 2014)

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, "Joseph Mithamo Kariuki & another v Nelson Kinyua Muiga & 4 others [2022] KEELC 979 (KLR)", Case Analysis (2022). Nyeri High Court Civil Suit No. 20 of 2009 (transferred to Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/979/eng@2022-03-10

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