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ELCPartially AllowedEnvironment & Land Case 43 of 2018· [2023] KEELC 17785 (KLR)

Nyokabi Kinyanjui & another v John Njenga Kinyanjui

Environment and Land Court
23 February 2023
YAY. M. Angima
4,007 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that married daughters can inherit family land, awarding two sisters shares despite their brother holding the title.

What this practically means

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Executive summary

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Two daughters of the late Kahia Turacha sued their brother, the registered proprietor of Nyandarua/Mkungi/145 (11.2 ha) and its subdivisions 5022-5024, seeking a declaration that he holds the land in trust for them, cancellation of the subdivision titles, equal three-way subdivision with transfer of two portions, and a permanent injunction. They pleaded that their father was allocated the plot in 1963 and that the Defendant procured sole registration through succession proceedings in the DM's Court at Tulaga in 1978 without notifying them. The Defendant denied the trust, asserting the deceased defaulted on the SFT loan which he himself paid, and counterclaimed for eviction, vacant possession and damages for trespass. The court framed six issues and found that the deceased was the initial allottee, that no withdrawal for default was proved, and that the Defendant obtained registration by virtue of the certificate of succession as heir. The Plaintiffs, excluded from the succession as married daughters, proved a customary trust; following the Supreme Court's Kiebia decision, physical possession was not a necessary ingredient. The Defendant could not rely on the unchallenged certificate since he had concealed the proceedings from the Plaintiffs. The Plaintiffs were held not to be trespassers, and the counterclaim was dismissed in its entirety. However, the court declined the equal three-way division sought, holding it would exclude three other sisters, and instead awarded each Plaintiff 1.866 ha, with the Defendant to hold the remainder in trust for the absent siblings. The permanent injunction was declined as unnecessary, and each party was ordered to bear own costs of the suit and counterclaim.

Key legal issues

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01

Mode of acquisition of registration

Holding

The Defendant obtained registration through inheritance via a certificate of succession, not by a fresh offer from SFT for default by the deceased

Reasoning

The deceased was the initial allottee; no evidence showed the allotment was withdrawn for non-payment. The Director of Settlement acted on the certificate of succession appointing the Defendant as heir, so the Defendant cannot disclaim the connection between the succession and his registration.

p. 5
02

Existence of customary trust

Holding

A customary trust arose in favour of the Plaintiffs as daughters of the deceased who were excluded from the succession proceedings

Reasoning

The Plaintiffs were not notified of the 1978 succession cause; married daughters were excluded from allocation. Relying on the Supreme Court's Kiebia decision, possession is not a necessary ingredient of customary trust. The Defendant therefore holds part of the property in trust for the Plaintiffs.

03

Effect of the unchallenged certificate of succession

Holding

The Plaintiffs are not precluded from claiming their share despite not challenging the 1978 certificate

Reasoning

The Defendant never notified the Plaintiffs of the succession proceedings, so he cannot rely on their failure to challenge the certificate. Requiring them to reopen 1979 proceedings would be impracticable.

p. 6
04

Trespass and counterclaim

Holding

The Plaintiffs are not trespassers; the counterclaim fails entirely

Reasoning

Having found the Defendant holds the property in trust and the Plaintiffs are entitled to a share, their occupation cannot be unlawful. All counterclaim reliefs (eviction, vacant possession, damages for trespass) were therefore refused.

05

Quantum of the Plaintiffs' entitlement

Holding

Each Plaintiff awarded 1.866 ha, being an equal six-way share of the 11.2 ha property

Reasoning

Equitable division among all six siblings would yield 1.866 ha each; the Plaintiffs are to be placed in the position they would have occupied had the 1978 succession been equitable, with the Defendant holding the remainder in trust for the absent siblings.

p. 7

Legal principles established

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  • To prove a customary trust in land, actual physical possession and occupation is not necessary; a court may enquire into the circumstances of registration
  • Payment of the SFT loan by one heir does not terminate other beneficiaries' interests nor confer absolute ownership
  • Marriage or absence from the land are not legitimate grounds to exclude daughters from inheriting family land

Court orders

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  1. 1.Declaration that the Defendant holds L.R. Nyandarua/Mkungi/145 and/or subdivisions Nyandarua/Mkungi/5022-5024 in trust for himself and the Plaintiffs
  2. 2.Cancellation of the title deeds for the subdivisions to revert to the original mother title
  3. 3.Defendant to subdivide Title No. Nyandarua/Mkungi/145 measuring 11.2 ha into 6 equal portions of 1.866 ha and transfer 2 portions to the 1st and 2nd Plaintiffs respectively
  4. 4.In default of compliance, the Deputy Registrar to execute all relevant forms and instruments to register the Plaintiffs as proprietors of their respective portions
  5. 5.Permanent injunction declined
  6. 6.Defendant's counterclaim dismissed in its entirety
  7. 7.Each party to bear own costs of the suit and counterclaim

Authorities

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Legislation

  • Civil Procedure RulesOrder 15 rule 2
  • Civil Procedure ActSection 27
  • Registered Land ActSection 28 (proviso) and Section 30(g)

Cases cited (7)

  • Gathiba –vs- Gathiba
    Nairobi HCCC No. 1647 of 1984

    Customary law trust in favour of children of the deceased

  • Kanyi –vs- Muthiora
    [1984] KLR 712

    Trust claims by children of deceased against registered proprietor

  • Mbui Mukangu –vs- Gerald Mutwiri
    Civil Appeal No. 281 of 2000

    Possession and occupation key to customary trust; later held possession no longer necessary

  • Justus Maina Muruku –vs- Jane Waithira Mwangi
    [2018] eKLR

    Customary trust is a question of fact requiring evidence

  • George Mbiti Kiebia & Another –vs- Isaya Theuri M'Lintari & another
    [2014] eKLR

    Possession not a necessary ingredient of proving customary trust

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

    Upholding that one need not be in actual possession to prove a trust in land; customary trust under proviso to Section 28 RLA

  • Hussein Janmohamed & Sons –vs- Twentsche Overseas Trading Co. Ltd
    [1967] EA 287

    Costs follow the event; successful party ordinarily awarded costs

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land disputes); issues framed under Order 15 rule 2 of the Civil Procedure Rules

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, "Nyokabi Kinyanjui & another v John Njenga Kinyanjui", Case Analysis (2023). Environment & Land Case 43 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17785/eng@2023-02-23

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