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ELCPartially AllowedEnvironment and Land Case 23 of 2020· [2023] KEELC 16405 (KLR)

Gichini & 5 others v Karanja (Sued as the Legal Administrator of the Estate of the Late Mwangi Gichini)

Environment and Land Court
23 March 2023
5,614 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled family land held in trust can be reclaimed decades later, splitting the Murang'a parcel equally among three family houses.

What this practically means

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Executive summary

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The six Plaintiffs, members of the family of Gichini Gaturu, sued the Defendant, administrator of the estate of Mwangi Gichini, by Amended Originating Summons seeking a declaration that Mbote Gichini and the late Mwangi Gichini held title to Fort Hall Loc. 18/Kirere/3 in trust for themselves and the 1st-5th Plaintiffs, survey and sub-division of the land, and rectification of the register. The Defendant opposed, contending the suit should have been by plaint, was statute-barred, that the 2nd-5th Plaintiffs lacked a grant ad litem, and that the land was shared per the two houses of Gichini Gaturu. The Court heard viva voce evidence from three witnesses per side. It held the suit was not time-barred since Section 20(1) of the Limitation of Actions Act excludes trust claims, consistent with Macharia Kihari. It agreed with the Defendant only that the 2nd-5th Plaintiffs lacked locus, but the 1st Plaintiff's limited grant sustained the suit. Applying the five elements in Isack M'Inanga Kiebia v Isaaya Theuri, and relying on uncontroverted evidence of family land, occupation, burials and the father's intention that the land be shared among his three sons, the Court found a customary trust in favour of Muhura Gichini's line. It ordered cancellation of entry No. 2 in the Green Card, directed a Government Surveyor to survey the land within 30 days, directed execution of sub-division documents with the Deputy Registrar to execute in default, and ordered each party to bear their own costs as a family matter.

Key legal issues

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01

Whether the suit was time barred

Holding

Suit not statutory barred; Section 20(1) Limitation of Actions Act excludes trust claims

Reasoning

The Defendant argued the suit was filed 12 years after accrual. The Court applied Section 20(1) of the Limitation of Actions Act and the Macharia Kihari decision holding that under customary law land is held in trust even for decades, so limitation does not apply. The Defendant did not adequately address the issue.

p. 5
02

Whether the 2nd-5th Plaintiffs had locus standi

Holding

2nd-5th Plaintiffs lack locus; suit sustained through the 1st Plaintiff's limited grant

Reasoning

The Court noted a Grant ad Litem was issued to the 1st Plaintiff on 17th March 2021. Relying on Julian Adoyo Ongunga on the cardinal nature of locus and re-Estate of Benson Maingi Mulwa on beneficiaries' right to protect estates, it found the 2nd-5th Plaintiffs lacked locus but their presence was not fatal given the 1st Plaintiff's authority.

p. 6
03

Whether a customary trust existed over the suit land

Holding

Yes - Mbote Gichini and Mwangi Gichini held the land in trust for themselves and Muhura Gichini and/or beneficiaries

Reasoning

Applying the five Kiebia elements, the Court found the land was family land first registered to Gichini Gaturu, transmitted to two sons, with uncontroverted evidence that the father intended equal sharing among his three sons and that Muhura Gichini was absent in Mombasa at registration. Occupation, burials and peaceful co-existence corroborated the trust.

p. 9
04

Whether Plaintiffs entitled to rectification and survey

Holding

Yes - register to be rectified by cancelling entry No. 2 and land surveyed into equal thirds

Reasoning

Under Section 80 of the Land Registration Act the Court may order rectification. The Court directed cancellation of entry No. 2 in the Green Card and directed a Government Surveyor to survey the land, taking into account current occupation, with each of the three sons' houses entitled to one third.

p. 10

Legal principles established

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  • Limitation does not apply to actions by beneficiaries under a trust to recover trust property
  • Customary trust is an overriding interest under Section 28(b) of the Land Registration Act and can defeat indefeasibility of title
  • A trust must be proved by evidence and cannot be presumed lightly

Court orders

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  1. 1.Declared that Mbote Gichini and Mwangi Gichini (deceased) hold title to Fort Hall Loc. 18/Kirere/3 in trust for themselves and Muhura Gichini (deceased) and/or their beneficiaries
  2. 2.Trust determined and land to be shared equally among the children of Gichini Gaturu (deceased)
  3. 3.Land Registrar ordered to cancel entry No. 2 in the Green Card for Fort Hall Loc. 18/Kirere/3 and any subsequent titles emanating thereof
  4. 4.Government Land Surveyor directed to survey the land within 30 days of judgment
  5. 5.6th Plaintiff and Defendant to execute relevant documents to facilitate sub-division within 30 days of completion of survey
  6. 6.In default, the Deputy Registrar to execute the said documents
  7. 7.Each party to bear their own costs

Authorities

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Legislation

  • Limitation of Actions ActSection 20
  • Land ActSection 7
  • Land Registration ActSection 28
  • Land Registration ActSection 80
  • Registered Land Act (Cap 300) (repealed)Section 30(g)
  • Survey Actnot specified

Cases cited (13)

  • Isack M'Inanga Kiebia vs Isaaya Theuri & Another
    [2018] eKLR

    Five elements for proving customary trust; recognition under Section 30(g) RLA

  • Ngugi vs Kamau & Another
    [2022] KEELC 2261 (KLR)

    Registration did not preclude holding land in trust

  • Re Estate of Ngamini Kirira (deceased)
    2016 eKLR

    Equal distribution of property where customs are applied

  • Macharia Kihari v Ngigi Kihari
    [1994] eKLR

    Limitation does not apply in customary law trust claims

  • Stephens & 6 others v Stephens & another
    [1987] eKLR

    Adopting the position that limitation does not apply to customary trust

  • Julian Adoyo Ongunga & another v Francis Kiberenge Bondeva
    Civil Appeal No. 119 of 2015 (Migori) [2016] eKLR

    Cardinality of locus standi in civil matters

  • re-Estate of Benson Maingi Mulwa (Deceased)
    [2021] eKLR

    A beneficiary may move the Court to preserve a deceased's estate

  • Njenga Chogera vs Maria Wanjira Kimanui & 2 Others
    [2005] eKLR

    Customary trust proved by leading evidence (quoting Muthuita v Muthuita)

  • Muthuita –vs- Muthuita
    [1982-88] 1 KLR 42

    Customary trust is proved by leading evidence

  • Peter Ndungu Njenga vs Sophia Watiri Ndungu
    [2000] eKLR

    Courts will not imply a trust save to give effect to parties' intention

  • Juletabi African Adventure Limited & Another vs Christopher Michael Lockley
    [2017] eKLR

    Onus lies on party relying on existence of a trust to prove it

  • Republic V Kisumu District Lands Officer & another
    Kisumu Misc No. 80 of 2008 [2010] eKLR

    Only the Court can cancel or amend registration for fraud or mistake, not first registrations

  • Super Nova Properties Limited & another v District Land Registrar Mombasa & 2 others; Kenya Anti-Corruption Commission & 2 others (Interested Parties)
    Mombasa Appeal No. 98 of 2016 [2018] eKLR

    Only a court of law can cancel a title on basis of fraud or illegality

Jurisdiction invoked
Original jurisdiction under Article 162(2)(b) of the Constitution and the Environment and Land Court Act

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, "Gichini & 5 others v Karanja (Sued as the Legal Administrator of the Estate of the Late Mwangi Gichini)", Case Analysis (2023). Environment and Land Case 23 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16405/eng@2023-03-23

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