Kamau & another v Kamau & another (Environment & Land Case 38 of 2020) [2022] KEELC 3136 (KLR)
The bottom line
#The Environment and Land Court in Murang'a dismissed a family land trust claim because the claimants could not prove a trust with solid evidence.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction and res judicata
The ELC has jurisdiction over trust claims on land, and the suit is not res judicata because the Applicants were not parties to Murang'a SPM No. 22 of 1991 and did not litigate under the same title
Although the trust issue over parcel 804 was directly and substantially in issue in the former suit, the Applicants were not parties to it and there was no evidence they litigated under the Respondents' names. The conjunctive elements of section 7 of the Civil Procedure Act were therefore not satisfied, so the res judicata bar failed and the court proceeded to determine the trust claim on its merits.
Whether a trust (customary, resulting or constructive) was established over parcel 804
No trust was established; the Applicants' evidence was hearsay and they failed to prove ancestral/family ownership or intention to create a trust
PW1 and PW2 were born after the 1963 demarcation and gave hearsay evidence. There was no evidence the land was family or clan land before registration, nor that the 2nd Respondent acquired it by wrongdoing or unjust enrichment. The law never implies a trust save in cases of absolute necessity, and the intention to create one must be clearly determined. The 1st Applicant in fact benefited from parcel 1120.
Whether the titles issued to the Respondents should be cancelled
Titles cannot be cancelled absent proof of fraud, mistake or omission under section 80(1) of the Land Registration Act
Section 24(a) vests absolute ownership in a registered proprietor and section 25(1) renders those rights indefeasible save as provided in the Act. Rectification requires proof that registration was obtained, made or omitted by fraud or mistake. Since the trust claim failed, no basis for cancellation existed; the sub-division pursuant to the 1991 judgment had been effected and never set aside.
Legal principles established
#- An issue of trust cannot be raised or determined in a succession cause; it must be litigated in a civil suit
- A claim for trust, including customary trust, must be proved by cogent evidence and cannot be inferred from mere statements
- A court may only cancel or rectify a registration where it is satisfied it was obtained by fraud or mistake and where it is not a first registration
- Litigation must come to an end; multiplicity of cases over the same subject is an abuse of court process
Court orders
#- 1.The Originating Summons dated 18th November 2020 is dismissed entirely
- 2.Costs of the suit awarded to the Respondents
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over trust as an overriding interest on land; 'Trust is an overriding interest on land that falls within the jurisdiction of an ELC Court'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau & another v Kamau & another (Environment & Land Case 38 of 2020) [2022] KEELC 3136 (KLR)", Case Analysis (2022). Originating Summons dated 18th November 2020 (Murang'a ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3136/eng@2022-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.