Mbataru v Gitunga (Sued as the legal representative of the Estate of Itunga Kiragua) & 7 others
The bottom line
#A Kenyan court confirmed that family land held under customary trust must be shared, even decades after it was registered in one person's name.
What this practically means
#Executive summary
#Key legal issues
#Whether a customary trust arose over the suit parcels in favour of the plaintiff
A customary trust was established; the plaintiff, a minor at registration, met the Kiebia criteria and the brothers hold 1.5 acres from each parcel in trust for him
Applying the Supreme Court's Kiebia criteria, the court found the parcels were family land, the plaintiff belongs to the family, his relationship is close not remote, and he would have been registered but for being a minor. His occupation of the boundary of both parcels corroborated the trust. Registration of the brothers did not extinguish his overriding customary rights.
Whether the plaintiff's claim is time barred
No; a claim in customary trust cannot be defeated by limitation since no plea of limitation lies against a fiduciary in possession of trust property
Relying on Stephens v Stephens and Macharia Kihari v Ngigi Kihari, the court held that trust claims are continuing claims; the overriding interests subsist even after transmission of the land, so the delay from 1965 did not bar the suit.
Whether the 1st - 7th defendants proved their counterclaim for eviction and injunction
The counterclaim was dismissed as the trust claim succeeded
Having found the 1.5 acres out of parcel 502 held in trust for the plaintiff, the court held that portion did not form part of the deceased's estate distributable in the succession cause, so the plaintiff's occupation was not unlawful encroachment.
Whether the plaintiff was entitled to damages for destruction of property
Damages refused because the destruction occurred in implementation of a court order in the succession cause
The evidence showed the subdivision and clearing were undertaken pursuant to orders in Nkubu PMC Succession Cause No. 92 of 2016 supervised by police, so no liability attached to the 1st defendant for those actions.
Legal principles established
#- Customary trust is an overriding interest that need not be noted on the register and subsists on the land despite registration
- No plea of limitation is available to a fiduciary in possession of trust property; a customary trust claim cannot be defeated by Section 7 of the Limitation of Actions Act
Court orders
#- 1.The plaintiff's suit is allowed
- 2.Declaration that M'Itonga Kiragau and Festus Giitu Kiragau and/or their legal representatives and beneficiaries hold 3 acres out of Abogeta/U-Kithangari/502 and 503 in trust for the plaintiff, to be excised equally (1.5 acres from each parcel)
- 3.Order directing the legal representatives and/or beneficiaries to transfer 1.5 acres each to the plaintiff within 60 days, failing which the Deputy Registrar is empowered to sign and execute the relevant documents
- 4.Declaration that each 1.5 acres be excised at the centre where the two parcels border each other
- 5.Direction to the succession court in Nkubu PMCC Succession Cause No. 92 of 2016 to rectify the confirmed grant and exclude the 1.5 acres out of LR No. Abogeta/U-Kithangari/502 and/or award it to the plaintiff
- 6.Direction to the Land Registrar Meru not to implement the grant in Nkubu Succession Case No. 92 of 2016 until it is rectified
- 7.The 1st - 7th defendants' counterclaim is dismissed
- 8.Each party to bear their own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbataru v Gitunga (Sued as the legal representative of the Estate of Itunga Kiragua) & 7 others", Case Analysis (2023). Environment & Land Case E003 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21703/eng@2023-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.