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ELCAllowedKaratina MELC Case No. 23 of 2019 (Appeal)· [2022] KEELC 1847 (KLR)

Alice Wandia Kariithi v Joseph N Kariithi [2022] KEELC 1847 (KLR)

Environment and Land Court
3 February 2022
JOJ. O. OLOLA
1,827 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled that a sister's unchallenged evidence of family land ownership proved a customary trust, overriding her brother's registered title.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Nyeri against the judgment of Mrs. A. Mwangi, Principal Magistrate Karatina, delivered on 12 November 2020 in Karatina MELC Case No. 23 of 2019. The Appellant had sued her elder brother by Originating Summons seeking a declaration that he holds 0.177 Ha of land parcel No. Magutu/Gatei/864 in trust for her, an order for transfer of that portion, and costs. The suit proceeded by formal proof after the Respondent failed to enter appearance or file a response. The trial magistrate dismissed the suit, finding that the Appellant had failed to prove the land was ancestral, since the only evidence was a Certificate of Official Search that did not reveal from whom the Respondent obtained title, and he could have acquired it by succession or purchase. On appeal, the Appellant, acting in person, faulted the trial court for disregarding the unchallenged default judgment posture, for not upholding the customary trust elements it had itself enumerated, and for raising the standard of proof beyond a balance of probabilities. J. O. Olola J, as the first appellate court, rehearsed the Selle principles and the five elements of customary trust from Isack M'Inanga Kiebia. He found that the Appellant's uncontroverted testimony - that she was born on the land, was chased away in 1984 after bearing a son, and that her brother registered himself as sole proprietor in 1993 - established the trust on a balance of probabilities, and that the trial court should not have speculated about alternative modes of acquisition when the served Respondent chose not to appear. The appeal was allowed, the trial judgment set aside, the Originating Summons allowed in its entirety, with no order as to costs.

Key legal issues

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01

Proof of customary trust in land

Holding

The Appellant proved the elements of a customary trust on a balance of probabilities: she was born on the suit land, belongs to the family, and the claim is against her registered-proprietor brother

Reasoning

The trial court had correctly enumerated the five elements of customary trust from Isack M'Inanga Kiebia. The appellate judge found the Appellant established the necessary connection to the land through her uncontroverted testimony that she was born on the land, was chased away in 1984, and that the Respondent registered himself as sole proprietor in 1993. The Respondent, though served, failed to rebut the claim.

p. 3
02

Effect of an undefended suit on the trial court's evaluation

Holding

Where a defendant is served but fails to appear and controvert the plaintiff's evidence, the trial court cannot speculate that the land could have been acquired by succession or purchase

Reasoning

The trial magistrate had reasoned that the Respondent could have acquired title from any other source including succession or purchase. The appellate court held this was impermissible speculation because the Respondent had been served with the suit papers and given the opportunity to deny the relationship or assert purchase or inheritance, but did not come to court.

p. 3

Legal principles established

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  • A first appellate court must subject the whole of the evidence to fresh and exhaustive scrutiny and make its own conclusions, making due allowance for not having seen or heard the witnesses
  • Where evidence is uncontroverted after the opposing party was given opportunity to respond, the trial court should not speculate on alternative explanations such as purchase of the land

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment delivered on 12th November 2020 in Karatina MELC Case No. 23 of 2019 set aside
  3. 3.Substituted with an order allowing the Appellant's Originating Summons in its entirety
  4. 4.No order as to costs

Authorities

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Cases cited (2)

  • Selle & Another -vs- Associated Motor Boat Company Limited & Others
    (1968) EA 123
  • Isack M'Inanga Kiebia -vs- Isaaya Theuri M'Lintari & Another
    (2018) eKLR
On appeal from
Principal Magistrate's Court, Karatina
Karatina MELC Case No. 23 of 2019
Jurisdiction invoked
First appellate jurisdiction over appeals from subordinate courts in environment and land matters

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, "Alice Wandia Kariithi v Joseph N Kariithi [2022] KEELC 1847 (KLR)", Case Analysis (2022). Karatina MELC Case No. 23 of 2019 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1847/eng@2022-02-03

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