Kagunda v Stanley Kagunda Njogo & 2 others (Environment and Land Case Civil Suit E038 of 2021) [2022] KEELC 3482 (KLR)

The defendants objected that matrimonial property claims belong to the High Court. Relying on Jane Wambui Ngeru v Timothy Mwangi Ngeru and B W M v J M C, the Court noted the Matrimonial Property Act does not specify the forum and that the ELC's jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act extends to land disputes. Since the suit concerns title, use and occupation of the suit properties, the Court held it is clothed with the requisite jurisdiction.

The defendants argued the suit was statutory barred as the cause of action arose in 2006. The Court applied Section 7 and Section 20 of the Limitation of Actions Act, holding that no limitation period applies to a beneficiary's action in respect of fraud or fraudulent breach of trust. Since the Applicant's claim rests on the 1st Defendant holding the lands in trust, limitation does not apply, and the question of trust is a matter for the full hearing.

Applying Giella v Cassman Brown and the Mrao definition of a prima facie case, the Court found the Applicant established a right (via the Section 14 MPA presumption) but produced evidence only of the transfer of Loc.19/gacharageini/414, an injunction over which was overtaken by events. No evidence supported her apprehension over the subdivision of parcel 1284 or parcels 252 and 154, so speculative injury would not do, and the injunction was refused.

The Court found the Applicant has a right to the suit lands worthy of protection and that whether the lands are matrimonial properties or held in trust is a matter for the full hearing. Guided by Section 68 of the Land Registration Act and the conditions in Japhet Kaimenyi M'ndatho v M'ndatho M'mbwiria, the Court exercised its discretion to preserve the status quo by issuing an inhibition order over the suit properties.