Ndungi v Macua (Environment and Land Appeal E060 of 2021) [2024] KEELC 3550 (KLR)
The bottom line
#A Kenyan court confirmed daughters can claim family land through customary trust, dismissing a brother's appeal and affirming his sister's share.
What this practically means
#Executive summary
#Key legal issues
#Whether customary trust in favour of the Respondent was proven
Yes - the appellant's own trial evidence admitted holding the land in trust for his siblings, and the green card showed the suit land was a subdivision of family land
The court applied the Supreme Court's criteria in M'inanga for establishing customary trust. The appellant's own evidence - that the land belonged to his father and that he held it in trust for his siblings - together with the green card showing the suit parcel was a subdivision of the original family parcel 952, and DW2's evidence that he received his share, demonstrated that the land held by the appellant was encumbered by trust in favour of himself and his siblings.
Whether the Respondent, a daughter, is entitled to a share of the property
Yes - exclusion of daughters has no evidential or legal basis; it would offend the constitutional guarantee of equality
The court found no evidence supporting the claim that the deceased intended the land to go only to male children. The claimant's entitlement could not be defeated merely because other daughters had not claimed. Article 27(1), (2) and (3) of the Constitution outlaws discrimination on the basis of gender, entitling women to equal treatment in inheritance of family land.
Legal principles established
#- Customary trust is one of the ways of acquisition of land in Kenya and fosters intergenerational responsibility under Article 60 of the Constitution
- Whether a customary trust exists depends on the nature of the holding of the land and the intention of the parties, assessed case by case
- The fact that other daughters of a family have not claimed land does not defeat a daughter's entitlement; gender-based discrimination in land distribution is unconstitutional
Court orders
#- 1.The Appeal is dismissed
- 2.Costs shall be in favour of the Respondent
- On appeal from
- Magistrates' Court
- Jurisdiction invoked
- First appellate jurisdiction over the trial court's judgment of 15/6/2021 (statutory appeal; specific provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndungi v Macua (Environment and Land Appeal E060 of 2021) [2024] KEELC 3550 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3550/eng@2024-04-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.