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ELCPartially AllowedEnvironment & Land Case E029 of 2022· [2023] KEELC 21629 (KLR)

M'arimi & 2 others v M'arimi & 2 others

Environment and Land Court of Kenya
15 November 2023
7,693 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first appeal to the Environment and Land Court at Meru against the dismissal by the Chief Magistrate's Court (Meru CM ELC No. 9 of 2018) of the appellants' claim over L.R. No. Nthimbiri/Igoki/78, ancestral land of the late M'Arimi Mutweri registered in the 1st respondent's name. The appellants, siblings and sisters-in-law of the respondents, claimed the 1st respondent held the land in customary trust, subdivided it into Nos. 660 and 661 without consent, and transferred No. 660 to the 2nd respondent, who subdivided it into Nos. 782-787, one of which was sold to the 3rd respondent. The trial court had dismissed the suit and allowed the 3rd respondent's counterclaim as a bona fide purchaser. On appeal, Nzili J, applying the Supreme Court's M'Inanga criteria and authorities on Meru customary law, found the circumstances of registration, occupation and use established a customary trust in favour of the appellants, and that leaving the ancestral land did not defeat the claim. The suit was not res judicata as the appellants' issues were not litigated in Meru CMCC No. 300 of 2000, but having failed to seek joinder they could claim only against L.R. No. 661. The 3rd respondent's defence and counterclaim, filed in the capacity of 3rd defendant despite leave granted only to join as an interested party, were held an incurable nullity and struck out, with the resulting decree set aside. The appeal was allowed, the claim against the 2nd and 3rd respondents dismissed, and costs of the appeal and lower court awarded to the appellants against the 1st respondent.

Key legal issues

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01

Whether a customary trust was established over the suit land

Holding

Yes - the circumstances of registration, occupation, use and possession showed the 1st respondent registered the land in trust for the appellants

Reasoning

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.

p. 10
02

Whether the suit was res judicata given Meru CMCC No. 300 of 2000

Holding

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

Reasoning

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.

p. 10
03

Whether the 3rd respondent's defence and counterclaim were competent

Holding

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

Reasoning

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.

04

Whether leaving the ancestral land defeats a customary trust claim

Holding

No - departure from and non-occupation of family land does not extinguish the trust or the claimant's entitlement

Reasoning

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

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  • 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

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  1. 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. 2.The appeal allowed with merits; the dismissal of the appellants' suit set aside and the suit allowed
  3. 3.The claim against the 2nd and 3rd respondents dismissed
  4. 4.Costs of the appeal and of the lower court awarded to the appellants, to be met by the 1st respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 22
  • Civil Procedure RulesOrder 7
  • Registered Land Act (Cap 300) (repealed)Section 28(b)
  • Law of Succession ActSection 38

Cases cited (35)

  • Selle vs Associated Motor Boat Co. (1968) E.A 1
    (1968) E.A 1

    Duty of a first appellate court to rehear and re-appraise evidence while according deference to the trial court's advantage of seeing witnesses

  • Isaack M'Inanga vs Isaaya Theuri M'Linturi & another (2015) eKLR
    (2015) eKLR

    Elements qualifying a claimant as trustee of family, clan or group land

  • Peter Gitonga vs Francis Miangi M'Ikiara, Meru HCC No 46 of 2000

    Registration circumstances must be examined to determine the purpose of the registration

  • Geoffrey Mugambi and 2 others vs David KM. Mugambi and 3 others (1992) eKLR
    (1992) eKLR

    Notorious customs may be judicially noticed without evidence

  • Re-Estate of M'Murungi M'Mbwiria (2019) eKLR
    (2019) eKLR

    Meru and Tharaka succession custom: land divided among sons; daughters and widows received no share

  • Stephen Gitonga M'Muirthi vs Faith Ngira Murithi (2015) eKLR
    (2015) eKLR

    Section 38 Law of Succession Act enshrines equal distribution among surviving children irrespective of gender

  • David Kinuu M'Mugambi & others vs M'Mugambi M'Imanyara and others (1989) eKLR
    (1989) eKLR

    Meru polygamous family land distributed per house; custom does not render children landless

  • J.M. 1 vs J.M. 2 (2009) eKLR
    (2009) eKLR

    Land gathered by one son with father's consent and registered in his name is held in trust for the family under section 28(b) RLA

  • Elijah Ouko Matagaro & another vs Roselyne Dola Ouko & 4 others (2017) eKLR
    (2017) eKLR

    Customary trust is a matter of fact which must be pleaded, particularized and proved

  • Richard Nyamemba Auka & 2 others vs Josephine Motarohi & others

    Customary trust must be pleaded and proved as an overriding right

  • Susan Mumbi Waititu vs Mukuru Ndata & another (2007) eKLR
    (2007) eKLR

    Plaintiff must prove with cogent evidence that the suit premises were ancestral/family land

  • Justus Maina Muriuki vs Jane Waithira Mwangi (2018) eKLR
    (2018) eKLR

    Cited with approval Kanyi vs Muthiora on registration not extinguishing customary rights

  • Kanyi vs Muthiora (1984) KLR 712
    (1984) KLR 712

    Registration did not extinguish customary rights nor relieve trustee duties

  • Gathiba vs Gathiba NRB HCCA No. 1647 of 1984
    NRB HCCA No. 1647 of 1984

    The notion of trust is inherent in African customary law

  • Mbui vs Mukangu C.A No. 281 of 2000
    C.A No. 281 of 2000

    Customary trust as intergenerational equity; possession and occupation as key aspects

  • Mwangi vs Mwangi C.A 245 of 2004
    C.A 245 of 2004

    Concept of Muramati under Kikuyu customary law

  • Mainas Kiai vs IEBC (2017) eKLR
    (2017) eKLR

    Res judicata applies only to issues actually before the prior court

  • Bajeber Ltd vs Kenya Revenue Authority (2021) eKLR
    (2021) eKLR

    A party cannot file pleadings disparate from the capacity in which leave was granted

  • Communication Commission of Kenya vs Royal Media Service & 7 others (2014) eKLR
    (2014) eKLR

    Interested parties' role and limits in proceedings

  • Rose Njoki Kinyua & another vs Shaba Trustees LTD & A (2018) eKLR
    (2018) eKLR

    A party who was not a defendant cannot walk into proceedings by filing a defence

  • Britam General Insurance Ltd vs Ukwale Agnes Ndungu (2019) eKLR
    (2019) eKLR

    Same proposition on capacity to file defence

  • Luka Kipleitel Kotut vs Joseph Chebii & another (2013) eKLR
    (2013) eKLR

    A non-defendant cannot simply file a statement of defence

  • Marigat Group Ranch & 3 others vs Wesley Chepkoimet & others (2014) eKLR
    (2014) eKLR

    An interested party is neither plaintiff nor defendant and cannot claim rights over the subject matter

  • Francis Karioko Muruatetu & Another vs Republic (2016) eKLR
    (2016) eKLR

    An interested party may not frame or introduce new issues for determination

  • Michael Makau vs Simon Nganga (2018) eKLR
    (2018) eKLR

    Court orders and procedural rules should not be ignored with impunity; distinguished on verifying affidavit

  • Japhet Nkubitu and Anor versus Regina Thirindi (1998) eKLR
    (1998) eKLR

    Cited by 3rd respondent on unappealed decree in her favour

  • Stephen Ndolo Wambua vs Beatrice Mbula Mutila and others (2019) eKLR
    (2019) eKLR

    Cited by 3rd respondent on unappealed decree

  • Joseph Muriithi Njiru vs Mathenge Njeru 2016 eKLR
    2016 eKLR

    Cited by 3rd respondent on undefended claim

  • Kenya Commercial Bank Ltd vs Mwanzau Mbaluka and another (1998) eKLR
    (1998) eKLR

    Cited by 3rd respondent

  • Macfoy vs United Africa Co. Ltd (1961) 3 ALL ER 1169
    (1961) 3 ALL ER 1169

    A nullity is a nullity; defective pleadings cannot stand

  • Kibona vs Transcan Timber Ltd (1998)-1 EA 121
    (1998)-1 EA 121

    A counterclaim must have its own title and parties and be treated independently

  • Samaki Industries vs Samaki (1947) eKLR
    (1947) eKLR

    A counterclaim must have its title and parties

  • Kenya Ports Authority vs Modern Holding (2017) eKLR
    (2017) eKLR

    Jurisdictional irregularity may be raised by the court suo motu

  • Samuel Kamau Macharia vs (KCB) SC Civil Application No. 2 of 2011
    SC Civil Application No. 2 of 2011

    Jurisdiction cannot be conferred by consent or acquiescence

  • Kabuito Contractors Ltd vs David Mereka (2004) eKLR
    (2004) eKLR

    Court may raise jurisdictional issues on its own motion

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

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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, "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.