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ELCDismissedNot stated in the judgment (plaint amended 24th April 2013)· [2022] KEELC 1593 (KLR)

Gitiba Munga & 3 others v Peter Ndege Munga & another [2022] KEELC 1593 (KLR)

Environment and Land Court
21 January 2022
ECE.C. Cherono
1,677 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kerugoya dismissed three sisters' claim to family land because they waited over 29 years without objecting, lodging a caution, or occupying the property.

What this practically means

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Executive summary

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In this Environment and Land Court suit at Kerugoya, the four plaintiffs (three brothers and sisters... actually one brother and three sisters) sought a declaration that the defendants hold land parcels INOI/KAMONDO/995, 996 and 3635 in trust for the family and an order for equal sharing, with the portion sold (INOI/KAMONDO/3636) taken into account. The plaintiffs testified that their father, Warui Munga, occupied parcel 147 belonging to Mbogo Rukungu while Rukungu occupied the father's parcel 148; an exchange/rectification of registration was completed in May 1985 through the 1st defendant, who was to hold parcel 147 in trust for the family. The 1st defendant then subdivided it into parcels 995, 996 and 997, transferred 995 to the 2nd defendant, later transferred 996 to the 1st plaintiff, and sold 3636 to third parties, retaining 3635. The 1st defendant claimed he received parcel 148 absolutely from his mother in 1975 and was not willing to share with his sisters. The court framed two issues: whether a customary trust was established and costs. It held customary trust is an overriding interest under Section 28 of the Land Registration Act, found the 1985 subdivision and sharing among the three brothers acknowledged a trust for those in occupation, but held the sisters' claim, raised after more than 29 years of non-occupation and without objection or caution, had become stale. The suit was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the Plaintiffs established a customary trust over the suit land

Holding

The 2nd, 3rd and 4th plaintiffs failed to establish a subsisting customary trust; their claim had become stale

Reasoning

The court accepted that the land was clan land and that the 1st defendant subdivided and shared it among the three brothers in 1985, acknowledging a trust for those in occupation. However, the three sisters, who were married and not in occupation, never objected or lodged a caution for over 29 years (1985-2014). The court held such a delayed claim under customary trust becomes stale and overtaken by events, especially where the land had been subdivided and transferred to third parties.

p. 3
02

Who is liable to pay costs

Holding

Each party to bear their own costs given the sibling relationship

Reasoning

Although costs ordinarily follow the event, the court exercised discretion because the parties are siblings and ordered each party to bear their own costs.

p. 3

Legal principles established

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  • Customary trust is an overriding interest under Section 28 of the Land Registration Act which need not be noted on the register
  • Claims under customary trust become stale if beneficiaries do not raise them within a reasonable period, especially where the claimant is not in occupation
  • Subdivision and sharing of land by the registered proprietor among siblings may acknowledge holding in trust under Kikuyu customary law for those in occupation

Court orders

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  1. 1.The plaintiffs' claim against the defendants is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Land Registration ActSection 28
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (claim founded on customary trust under Section 28 of the Land Registration Act, No. 3 of 2012)

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, "Gitiba Munga & 3 others v Peter Ndege Munga & another [2022] KEELC 1593 (KLR)", Case Analysis (2022). Not stated in the judgment (plaint amended 24th April 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1593/eng@2022-01-21

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