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ELCPartially AllowedMurang'a Environment and Land Court Appeal (ELC Appeal) arising from Murang'a Chief Magistrates Court ELC Case No. 23 of 2020· [2023] KEELC 239 (KLR)

Macharia & 2 others v Waithaka (Environment and Land Appeal E017 of 2021) [2023] KEELC 239 (KLR)

Environment and Land Court
26 January 2023
8,074 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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A Kenyan court protected a wife's right to stay on family land her husband owned, confirming that a family home counts as matrimonial property even if bought before marriage.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Murang'a against the judgment of Hon. E. Muriuki, Senior Principal Magistrate, in Murang'a Chief Magistrates ELC Case No. 23 of 2020, wherein the trial court had entered judgment for the Respondent husband, ordering his wife and children (the Appellants) to vacate land parcel No. Loc.19/Gacharageini/1189. The Appellants contended the suit land was matrimonial property held in customary trust for the 1st Appellant wife. The Court first confirmed its jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act over disputes touching title to and occupation of land, including matrimonial property disputes, though it cannot order distribution of matrimonial property during a subsisting marriage. On the merits, the Court held that although the Respondent acquired the suit land in 1978 before the 1982 marriage, it became matrimonial property as the family home in which the parties had lived for over 30 years. The 1st Appellant's uncontroverted evidence of contribution to the tea planting gave her a beneficial interest under Section 9 of the Matrimonial Property Act. However, the alleged customary trust was not proved; trust is a question of fact and the Appellants failed to discharge the burden of proof. The prayer for equal registration on the title was refused as it would amount to distribution of matrimonial property during the marriage, and no orders were made on the Laikipia property for want of evidence of ownership. The Court set aside the trial judgment, declared the suit land matrimonial property, declared the 1st Appellant's beneficial interest, and restrained the Respondent from interfering with the Appellants' possession. Each party was to bear its own costs.

Key legal issues

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01

Jurisdiction of the ELC over matrimonial property disputes

Holding

The ELC has jurisdiction over matrimonial property disputes so long as they relate to land, but cannot order distribution of matrimonial property during the subsistence of a marriage

Reasoning

Article 162(2)(b) and Section 13 of the ELC Act confer jurisdiction over disputes on title to and occupation of land. Section 17 of the Matrimonial Property Act permits declarations of rights in property even during a subsisting marriage, but does not provide for sharing of such property, which requires dissolution of the marriage.

p. 10
02

Whether the suit property is matrimonial property

Holding

Yes; though registered in the Respondent's name before the marriage, it became matrimonial property as the family home

Reasoning

Section 2 of the Matrimonial Property Act defines the matrimonial home as property owned or leased by one or both spouses and occupied as the family home. The parties lived on the suit land for over 30 years since 1982. Additionally, the 1st Appellant's uncontroverted evidence of contribution to the tea planting gave her a beneficial interest under Section 9.

p. 12
03

Whether a customary trust existed in favour of the Appellants

Holding

No; the Appellants failed to discharge the burden of proving the trust

Reasoning

Section 28 of the Land Registration Act recognises customary trusts as overriding interests, but a trust is a question of fact to be proved by evidence. The Appellants produced only a marriage certificate and did not substantiate the alleged customary trust, failing on a balance of probability.

p. 15
04

Whether the injunction sought should issue

Holding

Yes; eviction would infringe the Appellants' protected beneficial interest

Reasoning

Having found the property to be matrimonial and the 1st Appellant to hold a beneficial interest, evicting the Appellants and relocating them to Laikipia would infringe that interest and disregard their beneficial entitlement.

p. 15

Legal principles established

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  • Property acquired before marriage may still be matrimonial property if it is the matrimonial home occupied by the spouses as family home
  • A spouse who contributes to the improvement of property acquires a beneficial interest under Section 9 of the Matrimonial Property Act
  • A trust must be proved by evidence; it is never implied or presumed

Court orders

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  1. 1.An order vacating and/or setting aside the Judgment of the Learned Senior Principal Magistrate Hon. E Muriuki in Murang'a Chief Magistrates ELC Suit No. 23 of 2020 delivered on 31st August 2021
  2. 2.A declaration that Land Parcel No. Loc.19/Gacharageini/1189 is matrimonial property
  3. 3.A declaration that the 1st Appellant has a beneficial interest worthy of protection over Land Parcel Loc.19/Gacharageini/1189
  4. 4.An order of injunction against the Respondent restraining him from interfering with the Appellants' possession of land parcel No. Loc.19/Gacharageini/1189
  5. 5.Each Party shall bear its own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticle 165(3)
  • Constitution of KenyaArticle 40
  • Environment and Land Court Act, 2011Section 13(1) and (2)
  • Matrimonial Property Act No. 49 of 2013Sections 2, 5, 6, 7, 9, 17, 19
  • Marriage Act, 2014Section 3
  • Christian Marriage and Divorce Actnot specified
  • Land Registration Act, 2012Sections 24, 25, 26, 28
  • Married Women's Property Act 1882Section 17 (repealed)
  • Civil Procedure ActSection 78
  • Evidence ActSections 107, 108, 109

Cases cited (19)

  • Moses Odhiambo Muruka & Another v. Stephen Wambembe Kwatenge & Another
    (2018) eKLR
  • Selle & Another vs Associated Motorboat Co. Ltd & Others
    (1968) EA 123
  • Njoroge v. Ngari
    (1985) KLR 480
  • PWK v. JKG
    (2015) eKLR
  • Gissing versus Gissing
    (1970) A ALL ER 780 Page 788
  • Peter Mburu Echaria Vs Priscilla Njeri Echaria
    (2007) eKLR
  • Isack M'Inanga Kiebia v. Isaaya Theuri M'Lintari & Another
    (2018) eKLR
  • SN v. FM
    (2019) eKLR
  • T.M.W. v. F.M.C
    (2018) eKLR
  • Kenya Ports Authority versus Kusthon (Kenya) Limited
    (2009) 2EA 212
  • Ephantus Mwangi and Another vs. Duncan Mwangi
    Civil Appeal No. 77 of 1982 [1982-1988] 1KAR 278
  • Mbogo vs Shah
    (1968) EA at Page 93
  • Jane Wambui Ngeru v Timothy Mwangi Ngeru
    (2015) eKLR
  • BWM vs JMC
    Murang'a ELC Case No. 379 of 2017 [2018] eKLR
  • N.C.K vs G.V.K
    [2015] eKLR
  • Arif vs Anwar
    [2015] EWHC 124 (FAM)
  • Mumo Vs 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
On appeal from
Chief Magistrates Court, Murang'a
ELC Case No. 23 of 2020
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011

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, "Macharia & 2 others v Waithaka (Environment and Land Appeal E017 of 2021) [2023] KEELC 239 (KLR)", Case Analysis (2023). Murang'a Environment and Land Court Appeal (ELC Appeal) arising from Murang'a Chief Magistrates Court ELC Case No. 23 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/239/eng@2023-01-26

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