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ELCPartially AllowedEnvironment & Land Case 21 of 2021· [2023] KEELC 18289 (KLR)

Martim & another v Tanui & 3 others

Environment and Land Court of Kenya
15 June 2023
5,555 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 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

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Executive summary

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This consolidated judgment of the Environment and Land Court at Kapsabet (M. N. Mwanyale, J) determined three suits between related parties over Nandi/Kurgung/281 measuring 4.73 Ha (about 11.7 acres): ELC 612 of 2012 (formerly HCCC 53 of 2010), ELC 102 of 2014 and Kapsabet PMCC 147 of 2008, consolidated on 24 January 2022 with ELC 21 of 2021 as the lead file. The plaintiff, daughter of Kipyego arap Maritim, claimed she and her father had occupied the suit land since 1970, that her father had advanced the deceased, Kimeli arap Kogo, Kshs 3,000 to purchase it, and sought declarations of adverse possession and trust, invalidation of succession proceedings, and an injunction. The defendants, administrators of the deceased's estate, contended the deceased lawfully owned the land, that only 6 acres were attributable to Arap Maritim's money, and that the court lacked jurisdiction over the succession cause. The court found as undisputed that Arap Maritim advanced Kshs 3,000 and that the purchase price was Kshs 2,340, so the whole property was bought with his funds. Adverse possession was refused because the doctrine does not apply between close relatives. However, a resulting trust was established, the deceased having registered the property in trust for Arap Maritim and his beneficiaries. Judgment was entered for the plaintiff declaring her entitled to 8.7 acres (her father having sold 3 acres to Elly Chepkuto Killy), with the defendants permanently restrained from interfering with her ownership, possession and occupation. Transfer reliefs were refused as the property is pending distribution in succession cause P&A 197 of 2014; the plaintiff was directed to move the succession court for rectification of the grant. Costs were awarded to the plaintiff.

Key legal issues

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01

Whether the Plaintiff proved adverse possession

Holding

Adverse possession failed because the parties are close relatives and the doctrine is not applicable between relatives

Reasoning

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.

p. 9
02

Whether a trust existed over Nandi/Kurgung/281

Holding

A resulting trust was established; Arap Kogo held the whole property in trust for Arap Maritim and his beneficiaries

Reasoning

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.

p. 8
03

Whether the Plaintiff was entitled to the reliefs sought

Holding

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

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 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. 2.Permanent restraint of the Defendants from interfering with the Plaintiff's ownership, possession and occupation of Nandi/Kurgung/281
  3. 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

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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, "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.