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ELCPartially AllowedOriginating Summons dated 20th April 2021 (Kapsabet Environment and Land Court)· [2023] KEELC 443 (KLR)

Bor ((Suing as the legal administrator of the Estate of the Late Kiptiniya Arap Maiyo)) v Ngisirei (Environment & Land Case 103 of 2021) [2023] KEELC 443 (KLR)

Environment and Land Court of Kenya
31 January 2023
6,424 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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A Kenyan court rejected a customary trust claim but still enforced a 1994 elders' decision giving a farmhand's family 4 acres of land.

What this practically means

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Executive summary

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The Plaintiff, administratrix of the estate of the late Kiptiniya Arap Maiyo, filed an Originating Summons seeking declarations that the Defendant holds L.R. NO. NANDI/NDALAT/282 as a trustee under a generational trust for the beneficiaries of the late Tapletgoi Kobot Kiplelmet, termination of that trust, cancellation of the Defendant's title and distribution of the land. She alleged her late husband was an adopted son of Arap Lelmet and Tapletgoi. The Defendant denied the adoption, asserting Kiptiniya was a farmhand gifted 4 acres by elders' resolutions, and that the land was charged to AFC. Four plaintiff witnesses and six defence witnesses testified, including a court-summoned expert on Nandi custom, Joseph Tek. Applying the five elements in Isaac M'inanga Kiebia vs Isaaya Theuri M'intari, the Court held that Kiptiniya was never initiated into the family, introduced to family members, nor given the family name; the credible evidence of his daughters that their mother was Tapletgoi's niece confirmed he was not an adopted son but a farm hand whose rights were inferior. His relationship to the family was too remote, so the Plaintiff lacked capacity to claim under customary trust and failed to prove her case on a balance of probabilities. The declaratory and cancellation prayers were refused. However, noting the 1994 elders' resolution gifting 4 acres to the families of Kiptiniya's two wives, which the Defendant was willing to honour, the Court recognized it under Article 159(2)(c) and adopted it as its judgment: upon discharge of the AFC charge, the Defendant to subdivide within 90 days and transfer the 4 acres to the Plaintiff as trustee for all the children. The Plaintiff was ordered to bear the costs of the suit.

Key legal issues

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01

Whether the Plaintiff, as administratrix of the estate of the late Kiptiniya Arap Maiyo, could claim under customary trust

Holding

No. The late Kiptiniya was not an adopted son of Arap Lelmet and Tapletgoi but a farm hand whose rights were inferior to an adopted son properly so called; his relationship to the family was too remote to found a customary trust claim.

Reasoning

Applying the five Supreme Court elements in Isaac M'inanga Kiebia, the Court found the evidence of DW3 and DW6 (that their mother was a niece of Tapletgoi and could not have married an adopted son) credible, and noted that Kiptiniya was never introduced to family members nor given the family name as Nandi adoption custom requires. His claim as a farm hand was therefore adventurous and the Plaintiff lacked capacity to claim under customary trust.

p. 11
02

Whether the Plaintiff proved her case and was entitled to the declaratory reliefs sought

Holding

No. Having no capacity to claim under customary trust, the Plaintiff failed to prove her case on a balance of probabilities and the declaratory and cancellation reliefs were refused.

Reasoning

The Court held that once the Plaintiff was found not to be a family or clan member capable of claiming under customary trust, the claim failed on proof. The Defendant's defence that the late Kiptiniya was a farm hand gifted 4 acres was merited, so the prayers for declarations of trust, cancellation of title and distribution could not issue.

p. 11
03

The legal effect of the 1994 elders' resolution gifting 4 acres to the family of the late Kiptiniya

Holding

The Court, on its own motion, recognized the 1994 resolution as part of traditional dispute resolution mechanisms under Article 159(2)(c) and adopted it as a judgment of the Court, directing subdivision and transfer of the 4 acres after discharge of the AFC charge.

Reasoning

Although the claim under customary trust failed, the evidence of DW5 and others established that a 1994 meeting of village elders, neighbours and family resolved to gift the family of Kiptiniya 4 acres, and the Defendant was willing to transfer those acres. The Court found this resolution not repugnant to justice and morality and thus recognizable and adoptable as a judgment under Article 159(2)(c) and Section 20 of the Environment and Land Court Act.

p. 12

Legal principles established

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  • Elements for qualifying a claimant under customary trust: the land must have been family, clan or group land before registration; the claimant must belong to that family, clan or group; the relationship must not be so tenuous as to make the claim idle or adventurous; the claimant could have been entitled to registration but for intervening circumstances; and the claim is directed against a registered proprietor who is a member of the family, clan or group.
  • Courts should recognize resolutions reached through traditional dispute resolution mechanisms under Article 159(2)(c) so long as they are not repugnant to justice and morality.

Court orders

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  1. 1.The Court recognized and adopted as a judgment of the Court the 1994 resolution granting 4 acres to the families of the two wives of the late Kiptiniya Arap Maiyo
  2. 2.Upon discharge of the title of NANDI/NDALAT/282 from the A.F.C, the Defendant Evelyne Ngisirei shall cause subdivision within 90 days thereof and transfer the 4 acres to be registered in the name of the Plaintiff for herself and as a Trustee for all the children of the late Kiptiniya Arap Maiyo from the two wives
  3. 3.The 4 acres were already identified, being the ones the family of the Plaintiff were given in the 1994 resolution and currently residing thereon
  4. 4.The Plaintiff shall bear the costs of this suit

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(c)
  • Environment and Land Court ActSection 20
  • Civil Procedure RulesOrder 18 Rule 10
  • Evidence ActSection 146(4)

Cases cited (2)

  • Shedrack Bungei vs Selina Jerotich
    Eldoret Civil Appeal No. 4 of 2018
  • Isaac M'inanga Kiebia vs Isaaya Theuri M'intari and Another
    2018 eKLR
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act (Section 20 invoked in recognition of the 1994 elders' resolution) and Article 159(2)(c) of the Constitution of Kenya

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, "Bor ((Suing as the legal administrator of the Estate of the Late Kiptiniya Arap Maiyo)) v Ngisirei (Environment & Land Case 103 of 2021) [2023] KEELC 443 (KLR)", Case Analysis (2023). Originating Summons dated 20th April 2021 (Kapsabet Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/443/eng@2023-01-31

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