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ELCPartially AllowedNot stated in the judgment as provided· [2022] KEELC 3144 (KLR)

Gitau v Gitau & another (Environment & Land Case 190 of 2017) [2022] KEELC 3144 (KLR)

Environment and Land Court
9 June 2022
7,458 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

The bottom line

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A Murang'a court confirmed the registered landowner's title, dismissed the family trust claim, and gave the occupying relatives 90 days to vacate.

What this practically means

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Executive summary

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The Plaintiff, registered owner since 1988 of land parcel Makuyu/Makuyu BLK 1/972 (later subdivided into BLK 1/6333 and 1/6334), sued his brother and nephew for eviction and an injunction, alleging he had permitted them to occupy the land for subsistence farming under a verbal licence from about 1988. The Defendants counterclaimed, asserting the land was purchased by their father/grandfather, John Gitau Njuguna (deceased), and registered in the Plaintiff's name to hold in trust for the family; they sought cancellation of the titles and equal sharing between the Plaintiff and the 1st Defendant, and at submissions urged adverse possession. The Court framed four issues. Applying M'inanga on customary trust and Juletabi and Njenga on resulting trusts, it held that trust is a question of fact to be proved by the party asserting it. The suit land was purchased, not ancestral land, and the claim that the father funded the purchase was unsupported by evidence; the Plaintiff's Punda Milia Cooperative Society exhibits showed he bought the land himself. No customary or resulting trust was therefore established. The adverse possession claim, raised only in submissions, was rejected as unpleaded - parties are bound by their pleadings and submissions are not evidence. The Counterclaim was held not time barred (cause of action arose in 2010) but failed on the merits. The Plaintiff proved his case on a balance of probabilities; his rights as registered owner under sections 24, 25 and 26 of the Land Registration Act and Article 40 of the Constitution prevailed. The Plaint was allowed entirely; the Defendants were given 90 days to vacate voluntarily, failing which eviction orders would issue, and the Counterclaim was dismissed with costs to the Plaintiff. Judgment delivered virtually at Murang'a on 9th June 2022 by L. Gacheru, Judge.

Key legal issues

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01

Whether a customary trust existed over the suit land in favour of the Defendants

Holding

No customary trust was established because the suit land was purchased land, not ancestral/family land, and the claim that the deceased father funded the purchase was unsupported by evidence.

Reasoning

The Court applied the Supreme Court's elements of customary trust in M'inanga, noting the land must have been family, clan or group land before registration. The exhibits showed the Plaintiff was a member of Punda Milia Cooperative Society through which he purchased the land, and the Defendants' assertion that their late father bought the land through the Plaintiff was not supported by documentary or other evidence.

p. 9
02

Whether a resulting trust arose in favour of the Defendants

Holding

No resulting trust was established; the evidence showed the Plaintiff solely purchased the land, becoming a member of the cooperative in 1983 with title issued in his name in 1988, and the Defendants failed on a balance of probability.

Reasoning

The Court reiterated that a trust will only be implied in cases of absolute necessity to give effect to the parties' clearly determined intention. The Defendants alleged the deceased father purchased the land and registered it in the Plaintiff's name because he worked in Mombasa and the mother lacked an ID, but this was not substantiated; the Plaintiff's own membership and receipts corroborated sole purchase.

p. 11
03

Whether the Court could grant adverse possession raised only in submissions

Holding

No; adverse possession must be pleaded and proved, and submissions are not pleadings or evidence.

Reasoning

The Court relied on Migore, IEBC v Mutinda Mule, and Arap Moi v Mwangi Stephen Muriithi for the principle that parties are bound by pleadings and evidence at variance with pleadings must be rejected. Granting unpleaded relief would descend into the arena and prejudice the Plaintiff, who had no opportunity to litigate the claim.

p. 11
04

Whether the Counterclaim was time barred under the Limitation of Actions Act

Holding

No; the cause of action arose in 2010, so the Counterclaim was not time barred.

Reasoning

Section 7 of the Limitation of Actions Act bars actions to recover land after twelve years. The Plaintiff began asserting ownership in 2006, a Land Disputes Tribunal case was filed and decided in 2010 in favour of the 1st Defendant, and the Counterclaim was filed in June 2021, roughly eleven years after the cause of action arose.

p. 12
05

Whether the Plaintiff was entitled to eviction and injunction

Holding

Yes; the Plaintiff, as indefeasible registered owner who proved his case on a balance of probabilities, was entitled to eviction and vacant possession, with the Defendants given 90 days to vacate voluntarily.

Reasoning

The Court found the Plaintiff was the registered owner whose rights under sections 24, 25 and 26 of the Land Registration Act are absolute and indefeasible, subject only to section 28 overriding interests. The Defendants failed to prove any trust, and Article 40 of the Constitution protects the Plaintiff's property rights against arbitrary deprivation.

p. 13

Legal principles established

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  • The existence of a trust is a question of fact to be proved by evidence, and the burden lies on the party relying on the trust.
  • Registration of a person as proprietor of land vests absolute ownership in that person, and those rights are indefeasible subject to overriding interests under section 28 of the Land Registration Act.
  • Submissions are not pleadings and do not constitute evidence; parties are bound by their pleadings and a court cannot grant prayers not sought or plead unpleaded claims for a party.
  • Long occupation of land does not confer ownership unless it is non-permissive and an adverse possession claim is properly made.
  • An action to recover land may not be brought after twelve years from when the right of action accrued (section 7, Limitation of Actions Act).

Court orders

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  1. 1.The Plaintiff's claim as contained in the Plaint dated 26th October 2010 is found merited and is allowed entirely
  2. 2.The Defendants are directed to voluntarily move out of the Plaintiff's suit land within a period of 90 days from the date of the judgment, failure of which eviction orders to issue
  3. 3.The Defendants' Counterclaim dated 30th June 2021 is found not merited and is dismissed entirely
  4. 4.The Plaintiff is awarded costs of the suit and of the Counterclaim

Authorities

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Legislation

  • Land Registration ActSections 24(a), 25(1), 26, 28
  • Evidence ActSections 107, 108, 109
  • Limitation of Actions Act Cap 122 Laws of KenyaSection 7
  • Constitution of Kenya, 2010Article 40
  • Trustee ActNot specified (referenced in Juletabi extract)

Cases cited (17)

  • Daniel Njuguna Mbugua vs. Peter Kiarie Njuguna & 2 others
    (2021) eKLR
  • Mtana Lewa vs. Kahindi Ngala Mwangandi
    (2005) eKLR
  • Daniel Otieno Migore v South Nyanza Sugar Co. Ltd
    [2018] eKLR
  • Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others
    (2014) eKLR
  • Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC
    SC 91/2002
  • Mumo v Makau
    (2002) 1EA.170
  • Gichuki Vs Gichuki
    C.A Civil Appeal No. 21 of 1981
  • Juletabi African Adventure Limited & another v Christopher Michael Lockley
    [2017] eKLR
  • Twalib Hatayan Twalib Hatayan & Anor v Said Saggar Ahmed Al-Heidy & Others
    [2015] eKLR
  • Isack Kieba M'inanga v Isaaya Theuri M'Lintari & another
    [2018] eKLR
  • Kiarie v. Kinuthia
  • Susan Mumbi Waititu –VS-Mukuru Ndata & 4 others
    (19 of 2007) eKLR
  • Peter Ndungu Njenga vs. Sophia Watiri Ndungu
    [2000] eKLR
  • Raila Amolo Odinga & Another vs. IEBC & 2 others
    (2017) eKLR
  • Robert Ngande Kathathi v Francis Kivuva Kitonde
    [2020] eKLR
  • Erastus Wade Opande vs. Kenya Revenue Authority & Another
    Kisumu HCCA No. 46 of 2007
  • Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another
    [2014] eKLR
Jurisdiction invoked
Article 40 of the Constitution of Kenya, 2010 and the Land Registration Act, 2012 (original civil suit)

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, "Gitau v Gitau & another (Environment & Land Case 190 of 2017) [2022] KEELC 3144 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3144/eng@2022-06-09

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