Ndung'u v Nduati & another
The bottom line
#The Environment and Land Court ordered cousins to vacate family land, ruling that purchased land cannot be claimed through customary trust and unpleaded claims fail.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendants' adverse possession claim, raised only in submissions, was available
The claim failed as it was never pleaded and could not be determined
The court held that issues flow from pleadings and parties are bound by their pleadings. Adverse possession was advanced for the first time in submissions, not in the defence or counterclaim. The authorities cited on adverse possession were therefore inapplicable and the claim had to fail without further analysis.
Whether a customary trust subsisted over the suit land
No customary trust arose because the land was purchased, not ancestral land
Relying on Isack M'inanga Kiebia v Isaaya Theuri M'lintari, the court accepted that customary trusts can bind first registrations. However, the undisputed evidence was that the suit land was acquired by purchase from Kimani Ndiba in 1959 and was not ancestral land, so no customary rights or interests could be claimed over it by either party.
Whether any other trust (resulting/implied) arose from the purchase
No trust of any kind arose; no evidence that Nduati Njoroge paid any part of the purchase price
Applying Dyer v Dyer via Rose Naswa Masinde, a resulting trust follows the advance of purchase money. DW1's evidence was internally inconsistent - first that payment was completed in late 1959 with her husband contributing, then that payment finished in 1967 or 1969 with unknown particulars. The court found not the slightest evidence of any contribution by Nduati.
Whether the alleged 1980s clan meeting defined Nduati's rights in parcel 53 'A'
No concrete evidence that the clan meetings defined any rights of Nduati within parcel 53 'A'; the meetings concerned the A/B boundary
DW1's own evidence that the meeting was to determine the boundary of parcels A and B supported the plaintiff's case. DW2 could not say what happened; DW3 retracted her claim of seeing money change hands; only DW4 asserted a 50/50 division, uncorroborated. The problem, per DW2 and DW3, arose only when the plaintiff grew up and needed land.
Whether the size of the parcel and defendants' own land undermined the trust claim
The 0.13-acre parcel could not plausibly have been intended for subdivision between two brothers; defendants had other land
The court reasoned that the parcel is almost exactly an eighth of an acre, making an intended subdivision between two brothers illogical. The defendants also had ancestral land Kiambaa/Thimbigwa 2723 registered in Nduati Njoroge's name and occupied by DW4's son, and DW1 admitted succession had been done over her husband's other properties.
Legal principles established
#- A customary trust, if proved to subsist, is one of the trusts to which a registered proprietor is subject under the proviso to Section 28 of the Registered Land Act
- Customary trust cannot attach to land acquired by purchase and not held under ancestral/customary tenure
- Trust is a question of fact to be proved by evidence; where property is conveyed in a name other than the purchaser's, a resulting trust arises in favour of the person advancing the purchase money
- A claim not pleaded cannot be determined; issues flow from the pleadings
Court orders
#- 1.The counter claim of the defendants is dismissed
- 2.The plaintiff's suit is allowed; the defendants are ordered to vacate suit land No. Kiambaa/Karuri/T 53 'A' within 30 days from the date of delivery of the judgment, failing which they are to be evicted
- 3.The defendants are condemned to bear the costs of the suit, plus interests on costs computed from the date of delivery of the judgment
- Jurisdiction invoked
- Transferred from Kiambu Magistrates' Court (CMCC No.12 of 2012) to the Environment and Land Court as Miscellaneous Case No. 17 of 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndung'u v Nduati & another", Case Analysis (2023). Environment & Land Miscellaneous Case 17 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17571/eng@2023-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.