Wamae & 3 others v Gikuhi & 7 others (Environment & Land Case 169 of 2014) [2023] KEELC 795 (KLR)

Environment and Land Court

16 February 2023

JOJ. O. Olola

2,646 words in judgment

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The bottom line

What this practically means

Executive summary

Four sisters sued their sister-in-law and her children seeking a declaration that their late brother, George Gikuhi Mburungo, held the original parcel LR No Konyu/Baricho/447 in trust for himself and the plaintiffs in equal shares, and seeking termination of the trust, cancellation of the sub-divided titles and reinstatement of the original parcel. The plaintiffs alleged their father, Mburungo s/o Muruambiri, registered owner of the land, died in 1968 leaving the land to all six of his children, and that the brother registered himself as sole proprietor in 1976 in trust for all. The 1st Defendant, the brother's widow, and their children denied any trust, contending the brother was registered as absolute proprietor in 1976 and later transferred the land to the 1st Defendant in 2004. The National Land Commission was enjoined as an interested party by consent but filed no pleadings. The court found it common ground that the parcel was family land registered in the father's name, who died intestate in 1968. Applying Section 2 of the Law of Succession Act, the court held that succession to the 1968 estate is governed by Kikuyu Customary Law applicable at death. Relying on Francis Gichohi Kambo v Esther Wanjiku Mwangi (2022) KECA 524 (KLR), the court held that under Kikuyu Customary Law land is inherited by sons and unmarried daughters; having admitted marriage before their father's death, the plaintiffs disqualified themselves from inheriting. The court also noted their silence over the land during their mother's and brother's lifetimes. The suit was dismissed with costs to the 1st to 4th Defendants.

Key legal issues

Whether a customary trust arose over the original parcel Konyu/Baricho/447 in favour of the plaintiffs

Holding

No trust arose; the plaintiffs had disqualified themselves from inheriting under Kikuyu Customary Law by being married before their father's death, and the land was transmitted to the only son, George.

Reasoning

The court found it common ground that the original parcel was family land registered in the father's name, who died intestate in 1968. The Law of Succession Act having come into operation in 1981, succession to the 1968 estate is governed by the customs applicable at death. Under Kikuyu Customary Law, only sons and unmarried daughters inherit. All four plaintiffs admitted being married before 1968, so they could not claim, and no trust basis was shown. Their long silence supported this conclusion.

p. 5

Legal principles established

Under Kikuyu Customary Law, land inherited from a deceased person falls to his son(s) or unmarried daughter(s), and married daughters are thereby disqualified from inheriting.
The estate of a person who died before the commencement of the Law of Succession Act is governed by the written laws and customs applicable at the date of death.

Court orders

1.The Plaintiffs' suit is hereby dismissed with costs to the 1st, 2nd, 3rd and 4th Defendants

Authorities

Legislation

Law of Succession ActSection 2(1) and 2(2)

Cases cited (2)

Francis Gichohi Kambo –vs- Esther Wanjiku Mwangi
(2022) KECA 524 (KLR)
Isaack M’Inanga Kiebie case

Jurisdiction invoked: Original civil jurisdiction of the Environment and Land Court over a claim for a declaration of trust over land

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Wamae & 3 others v Gikuhi & 7 others (Environment & Land Case 169 of 2014) [2023] KEELC 795 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/795/eng@2023-02-16

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