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ELCDismissedBusia ELC Case (Plaint dated December 29, 2020)

Nanjala & another v Endalo (Environment and Land Case Civil Suit E015 of 2020) [2022] KEELC 3174 (KLR)

Environment and Land Court
8 June 2022
2,886 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiffs, daughters of the late Charles Okechi Malingu, sued the Defendant, their brother, seeking a declaration that he holds land parcel Nambuku/ugala/samia/27 in trust for the family, an order for transfer of their shares, and an injunction, alleging breach of a trust created when their father transferred the land to him in 1996 as the only son. The Defendant denied the trust, pleaded res judicata based on prior Tribunal proceedings, a judicial review suit quashing the Tribunal's award, and an ELC suit by Maureen Nekesa (the 1st Plaintiff's daughter) in which he was ordered to give her half an acre, and raised limitation and locus standi. The court framed three issues: res judicata, trust, and costs. It held the Tribunal and JR proceedings did not meet the res judicata threshold since the Tribunal was not competent and its quashed award left the parties as if no suit existed. However, applying Explanation 6 of Section 7 of the Civil Procedure Act, it found the Plaintiffs' claim should have been joined with Maureen Nekesa's suit. On the trust claim, applying the Supreme Court's elements in Isack M'inanga Kiebia v Isaaya Theuri M'lintari, the court found no customary trust proved: the Plaintiffs were not in occupation, the 1996 transfer was unchallenged, and the alleged clan meeting was uncorroborated, the Tribunal proceedings having been quashed. Being siblings alone was insufficient proof of a trust. The suit was dismissed with each party bearing their respective costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the present suit is res judicata
  2. 2.Whether the Defendant is holding the suit land in trust for the Plaintiffs
  3. 3.Who bears the costs of this suit?

Key legal issues

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01

Whether the suit is res judicata given prior proceedings (Tribunal case, Busia HC JR No. 18 of 2011 / JR 14 of 2009, and Busia ELC No. 26 of 2014)

Holding

Not res judicata as against the JR proceedings because the Tribunal was not competent and its quashed proceedings left parties as if no suit existed; but the Plaintiffs' claim should have been joined with Maureen Nekesa's suit under Explanation 6 of Section 7

Reasoning

The JR case merely quashed Tribunal proceedings, which were themselves made by an incompetent forum. The ELC case by Maureen Nekesa concerned adverse possession; although on a different heading, the Plaintiffs, aware of it, could have litigated their claim there, so the court considered Explanation 6 of section 7 applicable but ultimately dismissed on the trust issue.

p. 4
02

Whether the Defendant holds the suit land in trust for the Plaintiffs under a customary trust

Holding

No customary trust established; the Plaintiffs are not in occupation, did not challenge the 1996 transfer, and gave no corroborated evidence of an intention to create a trust

Reasoning

The court applied the Supreme Court's elements of customary trust in Isack M'inanga Kiebia. The Plaintiffs were not in occupation, the transfer to the Defendant was unchallenged, the alleged clan meeting demarcating three portions was uncorroborated, and the Tribunal proceedings relied on had been quashed. Siblinghood alone cannot found a trust.

p. 5
03

Costs

Holding

Each party to bear their own costs

Reasoning

Having dismissed the suit, the court exercised its discretion on costs by ordering each party to bear their respective costs rather than awarding costs to the Defendant despite his success.

p. 6

Legal principles established

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  • A claim for breach of trust must be pleaded and particularised, and trust is a question of fact to be proved by evidence
  • Sibling relationship alone does not establish a customary trust; the claimant must prove the elements set out in Isack M'inanga Kiebia v Isaaya Theuri M'lintari
  • Rights of persons in actual occupation are subsumed under customary trusts in Section 25(b) of the Land Registration Act

Court orders

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  1. 1.The Plaintiffs' suit is dismissed
  2. 2.Each party shall bear their respective costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the ELC Act (not expressly cited in the judgment)

Relief refused

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Declaration that the Defendant holds land parcel Nambuku/ugala/samia/27 in trust for himself and the Plaintiffs

Plaintiffs failed to prove a customary trust; being siblings alone is insufficient proof

p. 6

Order compelling transfer of the Plaintiffs' shares of the suit land

No trust established; the transfer of the land to the Defendant in 1996 was not challenged

p. 5

Injunction restraining the Defendant from dealing with the suit land

Follows from dismissal of the principal claim

Costs

Each party shall bear their respective costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Their suit is dismissed with an order that each party shall bear their respective costs.
p. 6disposition
In my opinion being siblings by itself is not suficient proof of a trust.
p. 5customary trust - proof
Thus the LDT case and the ensuing JR case no 14 of 2009 does not meet the threshold of res judicata to this suit.
p. 4res judicata
The rights of a person in possession or actual occupation of land, as previously envisaged under Section 30 (g) of the Registered Land Act, have now been subsumed in the "customary trusts" under Section 25 (b) of the Land Registration Act.
p. 5customary trusts and occupation

Issues in the judgment

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minor

Inconsistent case number for the prior judicial review suit - pleaded as Busia HC JR No. 18 of 2011 but evidence and holding refer to JR case no. 14 of 2009

minor

The deceased's name is inconsistently rendered as 'Charles Okechi Malingu' and 'Charles Oketch Mangilu'

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, "Nanjala & another v Endalo (Environment and Land Case Civil Suit E015 of 2020) [2022] KEELC 3174 (KLR)", Case Analysis (2022). Busia ELC Case (Plaint dated December 29, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3174/eng@2022-06-08

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