Martim & another v Tanui & 3 others
The bottom line
#A Kenyan court confirmed family land held in trust belongs to the person who paid for it, but refused an adverse possession claim between relatives.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff proved adverse possession
Adverse possession failed because the parties are close relatives and the doctrine is not applicable between relatives
The court found the parties to be cousins, aunt and nephew. Relying on Samuel Kihamba v Mary Mbaisi and other authorities, it held that adverse possession cannot run within families against close relatives, as it would create havoc for families and society. The claim was therefore answered in the negative despite long occupation.
Whether a trust existed over Nandi/Kurgung/281
A resulting trust was established; Arap Kogo held the whole property in trust for Arap Maritim and his beneficiaries
It was undisputed that Arap Maritim advanced Kshs 3,000 while the purchase price was Kshs 2,340, so there was no top-up by Arap Kogo. The court implied a trust under Peter Ndungu Njenga and, following Twalib Hatayan and Mark Kiprotich Sirma, characterised it as a resulting rather than constructive trust, since the whole purchase money came from Arap Maritim.
Whether the Plaintiff was entitled to the reliefs sought
Partially: a declaration of entitlement to 8.7 acres and an injunction were granted, but transfer orders were refused as the succession court's jurisdiction could not be usurped
The property forms part of the estate of Arap Kogo in pending succession cause P&A No. 197 of 2014. The court found the plaintiff had a proved interest of 8.7 acres (her father having sold 3 acres to Elly Chepkuto Killy) and directed her to move the succession court for rectification of the grant rather than granting transfer reliefs.
Legal principles established
#- The doctrine of adverse possession does not apply within families against close relatives
- Where a transferee receives purchase money from another, a resulting trust arises in favour of the person who advanced the purchase money
- A beneficiary under a trust has a cause of action against the estate of a deceased trustee under Section 20(2) of the Limitation of Actions Act
Court orders
#- 1.Declaration that the Plaintiff is entitled to 8.7 acres in Nandi/Kurgung/281 pursuant to a resulting trust, while 3.0 acres belong to Elly Chepkuto Killy as purchaser
- 2.Permanent restraint of the Defendants from interfering with the Plaintiff's ownership, possession and occupation of Nandi/Kurgung/281
- 3.Costs of the suit to the Plaintiff
- Jurisdiction invoked
- Section 13 of the Environment and Land Court Act (invoked by the Defendants); original civil jurisdiction of the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martim & another v Tanui & 3 others", Case Analysis (2023). Environment & Land Case 21 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18289/eng@2023-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.