Murungi v Murungi (Enviromental and Land Originating Summons 14 of 2019) [2023] KEELC 781 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that a daughter registered on family land as owner holds it in trust for her mother, protecting the elderly mother's rights to remain.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established a trust over the suit land
Yes - the registration of the defendant as owner was reflective of a trust in favour of the plaintiff and her children, and the defendant holds the land in trust for the plaintiff and her siblings
The court found that the plaintiff was in occupation before the 2001 sale and transfer, that the transfer into the defendant's name was intended to avoid sibling disputes, and that the defendant admitted buying the land to settle her mother. The elements of customary/beneficial trust from Kiebia were satisfied, and the defendant failed to rebut the presumption of trust despite not calling her uncles who could have testified.
Whether the plaintiff proved adverse possession
The court found the plaintiff had beneficial and occupation rights accrued openly and continuously since 1998, and declined to deny her accrued rights as it would be unjust and unconstitutional
The court applied Kimani Ruchine: the defendant knew of her mother's occupation without force or secrecy from 2002 until 2014, never evicted her or issued a notice to vacate, and made no developments of her own. Given her admitted benevolent intention to settle her mother, the defendant's claim of permissive occupation was rejected in substance, and the plaintiff's long, open, exclusive possession with intention to possess was accepted.
Whether the defendant was entitled to evict the plaintiff
No - the plaintiff's beneficial and occupation rights precede the registration, and eviction would be unjust and unconstitutional
Article 57 of the Constitution obliges the State and family to ensure older persons live in dignity and respect, free from abuse. The defendant's assertion that her mother lived on the land at her mercy on humanitarian grounds was repugnant to these constitutional values, and the court invoked CEDAW as ratified by Kenya to protect the plaintiff from gender-based disinheriting tendencies.
Legal principles established
#- A plaintiff asserting trust must prove the existence of the trust, and where family land is held for the benefit of family members the court may presume a trust whether or not they are in actual possession
- Entry onto land by consent, permission or licence of the registered owner does not found a claim in adverse possession
- A daughter who returns from an aborted marriage and remains in occupation of family land is entitled to adverse possession and cannot be disinherited on account of gender
- Children have no vested right of inheritance during the lifetime of their parents, subject to beneficial and occupation rights
Court orders
#- 1.A declaration that LR No. Nkuene/Nkumari/311 was owned by the late Mbaabu Muriungi who subdivided it into Nos. 2181 and 2182 and caused No. 2181 to be registered in favour of the defendant in circumstances reflective of a trust in favour of the plaintiff and her children
- 2.A declaration that the plaintiff has beneficial and possessory rights over the suit land
- 3.An order that the defendant holds the suit property in trust for the plaintiff and her siblings
- 4.No orders as to costs
- Jurisdiction invoked
- Articles 57 and 13 of the Convention on the Elimination of Discrimination Against Women; Sections 38(1), (2) and (4) of the Limitation of Actions Act as read with Order 37 Rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Murungi v Murungi (Enviromental and Land Originating Summons 14 of 2019) [2023] KEELC 781 (KLR)", Case Analysis (2023). Originating Summons dated 22.3.2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/781/eng@2023-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.