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ELCDismissedEnvironment & Land Case 13 of 2012· [2023] KEELC 18200 (KLR)

Theuri v Njoroge & another

Environment and Land Court
16 June 2023
JOJ. O. Olola
3,155 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiff, by Originating Summons under Order 37 Rule 1 of the Civil Procedure Rules, sought a declaration that L.R No. Tetu/Karaihu/107 was held by the 1st Defendant's father (Njoroge Gathua, deceased) subject to a customary trust in his favour, or alternatively a declaration of adverse possession and rectification of the Register to place him as absolute owner, plus costs. He alleged he was given possession in 1958 and had developed the land, and that the 2010 transfer to the 2nd Defendant was fraudulent. Both Defendants denied the trust, asserting the Plaintiff's mother occupied the land only as a licensee; the 2nd Defendant purchased the land by agreement dated 29th January 1999 for Kshs.150,000/- and obtained registration through Nakuru High Court Succession Cause No. 629 of 2003. At trial, the Plaintiff testified as sole witness; the Defendants called two witnesses. The court held that a customary trust must be proved by evidence, and beyond the cousins' kinship nothing supported the trust claim; the Plaintiff's own testimony undermined his claimed status as eldest son. On adverse possession, the court found the Plaintiff's possession was not exclusive or non-permissive: he resided on another parcel, used the suit land only for farm implements, and his 1989 negotiations to purchase the land acknowledged the owner's title. The court applied Gabriel Mbui v Mukindia Maranya and Mtana Lewa v Kahindi Ngala Mwagandi. The suit was dismissed with costs to the Defendants.

Key legal issues

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01

Customary trust

Holding

Not established; mere kinship between the registered owner and the claimant's family does not prove a customary trust

Reasoning

The Plaintiff claimed the land was registered in 1958 in the 1st Defendant's father's name as trustee for his family. Apart from proving the two fathers were cousins, no evidence was adduced of any arrangement or understanding creating a trust. The Plaintiff's own claim to be the eldest son claiming for the family was contradicted by his concession that he was the last-born of his father's ninth wife, and no other family member claimed under the alleged trust.

p. 4
02

Adverse possession

Holding

Claim fails; possession was permissive and the Plaintiff acknowledged the owner's title by negotiating to buy the land

Reasoning

The Plaintiff conceded he resided on a different parcel registered in his brother's name and only kept farm implements on the suit land. His mother's long use of the land was by arrangement with the registered owner, i.e. permissive. His 1989 negotiations to purchase the land acknowledged the owner's title, inconsistent with adverse possession. He was also only about four years old in 1958 and could not have taken exclusive possession then.

Legal principles established

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  • A customary trust must be proved by way of evidence
  • Adverse possession requires clear and unequivocal proof of non-permissive, open, continuous, exclusive and uninterrupted possession for 12 years

Court orders

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  1. 1.The suit is dismissed with costs to the Defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 1

Cases cited (2)

  • Gabriel Mbui -vs- Mukindia Maranya
    (1993) eKLR

    Adverse character of possession must be established as a fact, with clear intention to hold adversely under a claim of right

  • Mtana Lewa -vs- Kahindi Ngala Mwagandi
    (2015) eKLR

    Essential prerequisites of adverse possession: possession not by force, stealth or licence; adequate in continuity, publicity and extent

Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (Article 162(2)(b) of the Constitution; 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, "Theuri v Njoroge & another", Case Analysis (2023). Environment & Land Case 13 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18200/eng@2023-06-16

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