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ELCDismissedNot stated in judgment (Eldoret ELC suit, plaint dated 21st February 2023, filed 1st March 2023)· [2024] KEELC 1410 (KLR)

Murisha & 2 others v Jepchirchir (Environment & Land Case E003 of 2023) [2024] KEELC 1410 (KLR)

Environment and Land Court
16 February 2024
LWL. N. Waithaka
2,957 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court at Iten dismissed a family's claim that ancestral land was held in trust for them because they failed to prove it.

What this practically means

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Executive summary

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The plaintiffs sued by plaint dated 21st February 2023 seeking a declaration that Irong/Korkitony/64, registered in the name of Andrew Kibii Langat (deceased), is subject to a trust in their favour to the extent of 34.3 acres. They contended the 40-acre property belonged to their father Edward Chelagat Chebet, who died before land adjudication, and that Andrew was registered to hold it in trust for his siblings but later caused it to be distributed in Eldoret High Court Succession P & A Cause No. 287 of 2007 without regard to their beneficial interest. The defendant, Andrew's widow, denied any trust and raised a plea of res judicata, relying on the ruling in the succession cause where the plaintiffs' objection failed. The court framed three issues: res judicata, whether the property was subject to a trust, and the orders to make. On res judicata, the court accepted the persuasive authorities cited by the plaintiffs that a succession court is not the proper forum to determine trusts in registered land and declined to find the suit barred. On the merits, five plaintiff witnesses testified that the family agreed Andrew should be registered because he was educated and would educate his siblings, but the court found this reason unpersuasive to infer a trust, noting the plaintiffs had never utilised the property as claimants. The suit was dismissed, and, as a family dispute, each party was ordered to bear their own costs.

Key legal issues

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01

Res judicata vis-à-vis the succession cause

Holding

The suit is not res judicata the succession cause because the succession court lacked jurisdiction over trusts in registered land.

Reasoning

The issue of trust was raised in the succession cause but, on persuasive authorities, a succession court is not the proper forum to determine questions of trust in registered land. The court therefore declined to find the instant suit barred by section 7 of the Civil Procedure Act as urged by the defendant.

p. 5
02

Whether a customary trust arose in favour of the plaintiffs

Holding

No trust was established; the plaintiffs failed to prove their claim on a balance of probabilities.

Reasoning

Although the land was ancestral and belonged to Edward, the explanation that Andrew was registered because he was educated and was to educate his siblings was not persuasive enough to infer a trust. The parties' conduct also did not reveal a trust, as the plaintiffs never utilised the suit property or any portion of it as persons with a claim.

Legal principles established

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  • A succession court is not the proper forum to hear and determine the question of trust in registered land, so such a claim is not res judicata a succession cause.

Court orders

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  1. 1.The plaintiffs' suit is dismissed
  2. 2.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Environment and Land Court ActSection 13
  • Constitution of KenyaArticles 165(5)(b), 162(2)

Cases cited (7)

  • Independence Electoral Boundaries Commission v. Maina Kiai and 5 others
    (2017) eKLR
  • In Re Estate of Mbai Wainaina (deceased)
    [2015] eKLR
  • Joseph Koori Ngugi & another v Stephen Ndichu J. Mukima
    [2017] eKLR
  • Isack M'inanga Kiebia v Isaaya Theuri M'lintari & another
    [2018] eKLR
  • Alice Wairimu Macharia v Kirigo Philip Macharia
    [2019] eKLR
  • Peter Ndungu Njenga v Sophia Watiri
    [2000] eKLR
  • Juletabi African Adventure Limited & Another v Christopher Michael Lockley
    [2017] eKLR
Jurisdiction invoked
Articles 162(2) and 165(5)(b) of the Constitution; Section 13 of the Environment and Land Court Act (invoked by plaintiffs on jurisdiction over trusts in registered land)

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, "Murisha & 2 others v Jepchirchir (Environment & Land Case E003 of 2023) [2024] KEELC 1410 (KLR)", Case Analysis (2024). Not stated in judgment (Eldoret ELC suit, plaint dated 21st February 2023, filed 1st March 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1410/eng@2024-02-16

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