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ELCDismissedEnvironment & Land Case E008 of 2021· [2023] KEELC 18584 (KLR)

Menjo v Menjo & 3 others

Environment and Land Court of Kenya
6 July 2023
MMM. N. MWANYALE
3,149 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, son of the 1st defendant, sued his father, uncle and three purchasers seeking a mandatory injunction to restrain the sale or interference with Nandi/kaiboi/38 and eviction of the purchasers, claiming the 30-acre parcel was matrimonial and ancestral family land held for the beneficiaries. He sued on his own behalf, his siblings' and his mother's. The defendants denied matrimonial or ancestral character, pleaded the purchasers were bona fide purchasers for value, and contended the suit was premature, vexatious and an abuse of process. The court framed issues on locus, cause of action, proof, relief and costs. It held that under section 7 of the Matrimonial Property Act a matrimonial property suit lies only after dissolution of marriage and only at a spouse's instance; the marriage was subsisting, so the plaintiff lacked locus to sue for his mother. On his own and his siblings' behalf, the plaintiff had neither pleaded nor proved customary or intergenerational trust under section 28 of the Land Registration Act, and the Court of Appeal authorities (Nahashon Karenge, Muriuki Marigi) confirm children have no vested right to inheritance during parents' lifetime. Finding no locus and no cause of action, the court dismissed the suit without considering the remaining issues, including the bona fide purchaser question, and ordered each party to bear its own costs given the family relationship of the parties.

Key legal issues

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01

Locus standi to bring a matrimonial property claim

Holding

A child cannot institute a matrimonial property suit on behalf of a spouse; the marriage was still subsisting so no matrimonial property claim could arise

Reasoning

Section 7 of the Matrimonial Property Act bars a matrimonial property suit during subsistence of the marriage. The marriage between the 1st defendant and the plaintiff's mother had not been dissolved. Following Silvia Wanjiku Kimani, only a spouse may bring such a claim, so the plaintiff lacked locus to sue on his mother's behalf.

p. 5
02

Pleading and proof of customary/intergenerational trust

Holding

Trust was neither pleaded nor proved; the plaintiff therefore lacked locus to sue on his own and his siblings' behalf

Reasoning

The plaintiff never pleaded that the land was held in trust. Customary trust is an overriding interest under section 28 of the Land Registration Act but must be pleaded and proved. Following Wilson Kenyanga and the Court of Appeal decisions in Nahashon Karenge and Muriuki Marigi, children cannot force parents to distribute land during their lifetime.

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Cause of action

Holding

No cause of action disclosed against the defendants

Reasoning

Having found no locus on both limbs and relying on the Court of Appeal authorities that registered proprietors cannot be compelled to distribute land during their lifetime, the court concluded the suit disclosed no cause of action and declined to consider the remaining issues.

p. 7

Legal principles established

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  • A claim for matrimonial property can only be instituted by a spouse, not children, and only after dissolution of the marriage under section 7 of the Matrimonial Property Act
  • Trust, including customary trust, must be specifically pleaded with particulars
  • Children have no vested right to inheritance during the lifetime of their parents

Court orders

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  1. 1.The suit is dismissed
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Land Registration Actsection 93(2)
  • Land Registration Actsection 28(a)
  • Land Registration Actsection 93(3)(b)
  • Matrimonial Property Actsection 2
  • Matrimonial Property Actsection 9
  • Matrimonial Property Actsection 6(1)
  • Matrimonial Property Actsection 7
  • Civil Procedure RulesOrder 2 rule 10
  • Civil Procedure RulesOrder 6 rule 8

Cases cited (8)

  • Mbui Mukangu v Gerald Muturi Mbui
    (2004) eKLR

    Intergenerational trust over family land

  • EKN v A.S & 2 others
    (2019) eKLR

    Spousal consent under section 93(3)(b) of the Land Registration Act

  • Silvia Wanjiku Kimani and another v Kimani Mairui Machungu and 2 others

    Matrimonial property claims must be brought by a spouse, not children

  • Wilson Kenyanga v Joel Ombwori
    Civil Appeal No 96 of 1998

    Trust must be pleaded with particulars; relief not founded on pleadings will not be given

  • Jemutai Tanui v Julina Jepteneny & 5 others
    Eldoret ELC Case No 44 of 2013

    Proprietors entitled to deal with their property as they please

  • Virginia Wanjiku Kirui v Prisca Waruguru Kiiru
    2002 (eKLR)

    Proprietor's right to deal with property

  • Nahashon Karenge & another v Lawrence Karenge
    2014 (eKLR)

    No vested right to inheritance during parents' lifetime

  • Muriuki Marigi v Richard Murigi Muriuki & 2 others

    Registered owner alive; property not available for subdivision except by his free will

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (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, "Menjo v Menjo & 3 others", Case Analysis (2023). Environment & Land Case E008 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18584/eng@2023-07-06

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