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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Plaintiff, as administratrix of the estate of the late Kiptiniya Arap Maiyo, could claim under customary trust
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.
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.
Whether the Plaintiff proved her case and was entitled to the declaratory reliefs sought
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.
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.
The legal effect of the 1994 elders' resolution gifting 4 acres to the family of the late Kiptiniya
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.
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.
Legal principles established
#- 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
#- 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.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.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.The Plaintiff shall bear the costs of this suit
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.