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ELCDismissedEnvironment and Land Appeal E5 of 2020· [2022] KEELC 14503 (KLR)

Gichuru v Gichuru

Environment and Land Court
3 November 2022
JOJ. O. Olola
1,612 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A son who claimed his mother held family land in trust for him lost because he could not prove the trust existed.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Nyeri against the judgment of A Mwangi, Principal Magistrate, delivered on October 22, 2020 in Karatina PMELC No 43 of 2018, which dismissed the appellant's suit with costs. The appellant, a son of the respondent, had sought orders restraining sub-division of and dealings in land parcel Ruguru/Kiamariga/1392, registered in the respondent's name since November 25, 1976, on the assertion that she held it in trust for herself and the family. He also claimed to have completed payments for two other parcels (Narok/Mutara South Block 1/983 and land in Kieni East Farmers Company Limited) which were allegedly erroneously registered in the respondent's name, and complained that she had allocated 12 acres to his sisters. The respondent maintained she was the absolute proprietor, that the appellant lived on the land as a licensee, and that she had sub-divided the land to allocate him 5 acres and her daughters 2 acres each. Olola J, rehearing the appeal, reiterated that the burden of proving a trust lies on the person asserting it and that courts never presume a trust, applying Jutelabi African Adventure Limited v Michael Lockley. The appellant's pleadings were unclear on the type of trust asserted, and he led no evidence of how the respondent came to be registered or how the trust was created. Any claim regarding the other parcels could not found a trust over the suit property. The appeal was dismissed with costs.

Key legal issues

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01

Whether a customary trust was established over the suit property

Holding

The appellant failed to prove a customary trust; he adduced no evidence of how the respondent came to be registered or how the trust was created

Reasoning

The court set out the elements required to prove a customary trust: ancestral or clan land, designation during adjudication and consolidation, and registration as family trustee. The appellant's pleadings were unclear on the type of trust, and his evidence concerned contributions to other, undisputed parcels registered in the respondent's name. Contribution to purchase of other land could not found a trust over the suit property registered to the respondent since 1976.

p. 3
02

Scope of the first appeal - re-evaluation of evidence

Holding

As a first appeal, the court is mandated to re-evaluate the evidence and arrive at its own independent judgment

Reasoning

The court acknowledged its duty on a first appeal to re-evaluate the trial evidence and judgment and reach its own conclusions, but found no basis to disturb the trial magistrate's findings on the evidence.

p. 2

Legal principles established

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  • The legal burden of proving the existence of a trust rests on the person asserting a right under the trust; a trust is never presumed by the court

Court orders

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  1. 1.The appeal is dismissed with costs

Authorities

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Cases cited (1)

  • Jutelabi African Adventure Limited and another -vs- Michael Lockley
    (2017) eKLR

    That the law never presumes a trust save in absolute necessity; intention to create a trust must be clearly determined

On appeal from
Principal Magistrate's Court at Karatina
Karatina PMELC No 43 of 2018 (Formerly Nyeri ELC Case No 114 of 2016)
Jurisdiction invoked
First appellate jurisdiction over the magistrates' court under the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gichuru v Gichuru", Case Analysis (2022). Environment and Land Appeal E5 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14503/eng@2022-11-03

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