Nanjala & another v Endalo (Environment and Land Case Civil Suit E015 of 2020) [2022] KEELC 3174 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the present suit is res judicata
- 2.Whether the Defendant is holding the suit land in trust for the Plaintiffs
- 3.Who bears the costs of this suit?
Key legal issues
#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)
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
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.
Whether the Defendant holds the suit land in trust for the Plaintiffs under a customary trust
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
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.
Costs
Each party to bear their own costs
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.
Legal principles established
#- 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
#- 1.The Plaintiffs' suit is dismissed
- 2.Each party shall bear their respective costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
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
#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.
In my opinion being siblings by itself is not suficient proof of a trust.
Thus the LDT case and the ensuing JR case no 14 of 2009 does not meet the threshold of res judicata to this suit.
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.
Issues in the judgment
#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
The deceased's name is inconsistently rendered as 'Charles Okechi Malingu' and 'Charles Oketch Mangilu'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.