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ELCPartially AllowedMurang'a Environment and Land Court Appeal (from Murang'a CMELC No. E025 of 2022)· [2024] KEELC 1060 (KLR)

Kamau & another v Nganga & another (Environment and Land Appeal E019 of 2022) [2024] KEELC 1060 (KLR)

Environment and Land Court
29 February 2024
LGL. Gacheru
5,456 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~22 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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This was a first appeal to the Environment and Land Court at Murang'a from a ruling of the Senior Resident Magistrate (Hon. S. Mwangi) dated 4th October 2022 in Murang'a CMELC No. E025 of 2022, in which the trial court struck out the Appellants' suit (originally brought by the Appellants as Plaintiffs) for want of jurisdiction and want of a reasonable cause of action, and dismissed the Appellants' own application to strike out the defence. The Appellants' suit had sought orders directing the Respondents to initiate succession proceedings over the estate of their father Nganga Kamau, and cancellation of titles over parcels Loc. 5/Kagumoini/1709-1712 and Loc. 5/Gitura/268 on the basis that Nganga Kamau had held the land in customary trust and that the Respondents had unlawfully caused the parcels to be registered in their names. Judge L. Gacheru, applying the first appellate duty under sections 65(b) and 78 of the Civil Procedure Act, held that the trial court erred in finding no reasonable cause of action: the Plaint disclosed a claim of customary trust and unlawful registration, which is properly litigated in the ELC and not the probate court, and registration does not extinguish customary trust. However, the court held the trial court did not err in refusing to determine unlawful registration or cancel titles at the interlocutory stage, nor in holding that the prayer for succession proceedings belonged in a citation before the probate court. The appeal was allowed only in part: the ruling of 4th October 2022 was set aside, the lower court file remitted to Murang'a Chief Magistrates Court for hearing before another magistrate, prayer (b) of the appeal (cancellation of titles) was refused as premature, and each party was directed to bear its own costs of the appeal.

Key legal issues

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01

Whether the trial court erred in striking out the suit for want of a reasonable cause of action

Holding

The trial court erred; the Plaint disclosed a claim for customary trust and unlawful registration which was a reasonable cause of action

Reasoning

The Appellants' claim, as pleaded, was for customary trust and cancellation of titles for unlawful registration. Registration of a proprietor does not extinguish customary trust, and such claims are properly litigated in the ELC. A reasonable cause of action is one with some chance of success on the allegations in the Plaint, not one guaranteed to succeed. Striking out being a drastic remedy exercisable only in the clearest of cases, the suit should have proceeded to trial.

p. 8
02

Whether the trial court erred in holding that the Appellants' remedy lay in filing a citation in the probate court

Holding

The trial court did not err on that narrow point - as regards prayer (a) alone, the citation route was correct - but that prayer had to be considered alongside the customary trust and unlawful registration claims

Reasoning

The trial court's finding that a citation in the probate court was the remedy for lack of succession proceedings was correct as far as prayer (a) alone was concerned. However, that prayer was linked to a broader claim of customary trust and unlawful registration, which distorted the claim and misdirected the striking-out analysis. The trust claim belongs in the ELC, not the probate court.

p. 9
03

Whether the trial court erred in failing to determine unlawful registration and cancel the title deeds

Holding

The trial court did not err; those were substantive contested issues that could not be determined at the interlocutory stage without evidence

Reasoning

The suit was struck out preliminarily and was never heard on merit. Whether the Respondents were lawfully or unlawfully registered were contested issues requiring witnesses, evidence and cross-examination. Titles can only be cancelled as provided by law, specifically section 80 of the Land Registration Act, and parties cannot be condemned unheard.

p. 9
04

The scope of the first appellate court's jurisdiction

Holding

A first appellate court may determine the appeal on both law and fact, re-evaluating the evidence, but will not lightly interfere with the trial court's discretion unless it misdirected itself or the decision is plainly wrong

Reasoning

Guided by section 78 of the Civil Procedure Act and settled authority, the court rehearsed the principle that it must re-evaluate, re-analyse and re-assess the evidence and reach its own independent conclusion, while recognizing that interference with a discretionary decision is warranted only where the judge misdirected himself in law, misapprehended the facts, took into account or failed to take into account relevant considerations, or where the decision is plainly wrong.

p. 5

Legal principles established

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  • Registration of a person as registered owner of land does not extinguish a customary trust
  • A claim for determination of customary trust and cancellation of titles is properly litigated in the Environment and Land Court, not a probate/succession court
  • The power to strike out pleadings is drastic and must be exercised sparingly, only in the clearest of cases
  • A reasonable cause of action need not be one that will succeed at trial, but one worth being heard and determined on merit

Court orders

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  1. 1.The Notice of Motion Application dated 28th June 2022 filed by the Defendants/Respondents in the trial court is dismissed entirely with costs to the Appellants
  2. 2.The Ruling of the trial court dated 4th October 2022 is set aside and vacated in terms of prayer (a) of the Memorandum of Appeal
  3. 3.The trial court case, Murang'a CMELC No. E025 of 2022, is re-opened
  4. 4.The original lower court file to be remitted to the Murang'a Chief Magistrates Court and the matter to proceed for hearing and determination on merit before another Magistrate other than Hon. S. Mwangi SRM
  5. 5.Prayer (b) of the Memorandum of Appeal (cancellation of titles) is not granted, as those are substantive prayers to be determined after full hearing of the main suit
  6. 6.Each party to bear its own costs of the Appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b) (via preamble to Environment and Land Court Act)
  • Environment and Land Court ActPreamble
  • Land Registration ActSection 26(1) and (2)
  • Land Registration ActSection 80(1) and (2)
  • Civil Procedure ActSection 65(b)
  • Civil Procedure ActSection 78
  • Civil Procedure RulesOrder 2 Rule 15(1), (2) and (3)

Cases cited (13)

  • Mbogo & Another vs Shah
    (1968) EA pg 15
  • Abok James Odera t/a A. J Odera & Associates vs John Patrick Machira t/a Machira & Co. Advocates
    (2013) eKLR
  • Peter M. Kariuki v Attorney General
    [2014] eKLR
  • United India Insurance Co. Ltd vs East African Underwriters (Kenya) Ltd
    (1985) EA 898
  • D.T. Dobie & Company Kenya Limited v Muchina
    (1982) KLR 1
  • Trivedi and Trivedi vs Njeri Ngiru
    Civil Appeal No. 129 of 1984
  • The Co-operative Merchant Bank ltd vs George Fredrick Wekesa
    Civil Appeal No. 54 of 1999 (CAK)
  • Ramji Megji Gudka ltd vs Alfred Morfat Omundi Michira & 2 others
    (2005) eKLR
  • Kanyi vs Muthiora
    (1984) KLR 712 CA
  • In the Matter of the Estate of Peter Igamba Njoroge
    Succession Cause No. 432 of 2009 (unreported)
  • Yaya Towers Limited v Trade Bank Limited (In Liquidation)
    [2000] eKLR
  • In the matter of the estate of Josiah Muli Wambua (deceased)
    Nairobi Succession Cause No. 2257 of 2012 (2014) eKLR
  • Gusii Mwalimu Investment & Others vs Mwalimu Hotel Kisii ltd
    Civil Appeal No. 160 of 1995
On appeal from
Murang'a Chief Magistrate's Court (CMELC)
Murang'a CMELC No. E025 of 2022
Jurisdiction invoked
Section 65(b) and Section 78 of the Civil Procedure Act (first appeal from magistrates' 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, "Kamau & another v Nganga & another (Environment and Land Appeal E019 of 2022) [2024] KEELC 1060 (KLR)", Case Analysis (2024). Murang'a Environment and Land Court Appeal (from Murang'a CMELC No. E025 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1060/eng@2024-02-29

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