M'arimi & 2 others v M'arimi & 2 others
The bottom line
#The court confirmed family land can be held in customary trust despite registration, but buyers from a trustee may keep their portions.
What this practically means
#Executive summary
#Key legal issues
#Whether a customary trust was established over the suit land
Yes - the circumstances of registration, occupation, use and possession showed the 1st respondent registered the land in trust for the appellants
The source of the suit land was the late M'Arimi Mutweri; only the 1st respondent was registered; the 1st appellant occupied the land as a youth; the 2nd respondent admitted the land belonged to the father and was registered in the 1st respondent's name in trust for the family. Applying the M'Inanga criteria, the court found an intention to create a trust for the appellants.
Whether the suit was res judicata given Meru CMCC No. 300 of 2000
No - the issues raised by the appellants were not before that court, but the appellants, having known of the suit without seeking joinder, can only claim against L.R. No. 661
The prior suit was between the 1st and 2nd respondents and was determined exparte; the appellants' trust claims were never litigated there. However, having attended and not sought to be joined, they cannot attack the decree or the 2nd respondent's title derived from it.
Whether the 3rd respondent's defence and counterclaim were competent
No - she was granted leave as an interested party but filed as a 3rd defendant without proper appearance, service or direction of the counterclaim; the pleadings were a nullity
Leave was to join as interested party, not defendant; the counterclaim lacked a titular heading, did not comply with Order 7, was not served, and did not specify against whom it was directed. An interested party cannot introduce new issues or frame a counterclaim. The trial court's determination of it was a nullity ab initio.
Whether leaving the ancestral land defeats a customary trust claim
No - departure from and non-occupation of family land does not extinguish the trust or the claimant's entitlement
The only justification offered by the respondents was that the appellants left, acquired land elsewhere and never developed the suit land. Citing Kanyi vs Muthiora and Mbui vs Mukangu, the court held registration did not extinguish customary rights and trust is a concept of intergenerational equity.
Legal principles established
#- Elements qualifying a claimant as a trustee of family/clan land under customary trust
- A counterclaim is a stand-alone suit which must have its own title and parties and be treated independently
- A pleading filed in a capacity different from that for which leave was granted is a nullity
- Registration of land does not extinguish customary rights nor relieve the registered proprietor of trustee obligations
Court orders
#- 1.The defence and counterclaim filed by the 3rd respondent struck out as incurably defective and incompetent, and the decree arising therefrom set aside
- 2.The appeal allowed with merits; the dismissal of the appellants' suit set aside and the suit allowed
- 3.The claim against the 2nd and 3rd respondents dismissed
- 4.Costs of the appeal and of the lower court awarded to the appellants, to be met by the 1st respondent
- On appeal from
- Chief Magistrate's Court at Meru
- Meru Chief Magistrate ELC Case No. 9 of 2018
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrate's Court (Environment and Land Court Act), the appeal being from Meru CM ELC Case No. 9 of 2018
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M'arimi & 2 others v M'arimi & 2 others", Case Analysis (2023). Environment & Land Case E029 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21629/eng@2023-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.