Muiruri & 6 others v Murigi & another (Environment & Land Case E019 of 2022) [2024] KEELC 3638 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether customary trust was established over the suit land
Yes - the land was purchased by the Plaintiffs' mother and registered in the name of her elder son to hold in trust for the family of Eunice Wambui.
PW4, an 82-year-old step-brother with knowledge of the family land history, gave unshaken evidence that the mothers purchased the land and registered it in the names of their elder sons as was the custom, having no ID cards. The Defendants led no rebuttal evidence. Occupation of distinct portions, permanent homes, and burials on the land demonstrated clear intention to create a trust. The court applied the M'inanga principles and held the trust proved on a balance of probabilities.
Whether the Plaintiffs acquired title by adverse possession
Yes - the Plaintiffs occupied their distinct one-acre portion openly, continuously and exclusively for over 12 years, dispossessing the registered owner.
The Defendants admitted the Plaintiffs' long occupation of a distinct portion with clear boundaries. Even if the initial entry was permissive, after Moses Murigi died in 2003, 12 years lapsed in 2015 while the Plaintiffs remained in occupation without force, secrecy or interruption. The registered owner never asserted his rights. The elements in Wambugu v Njuguna were satisfied.
Whether the Defendants were properly sued as legal representatives
Yes - as holders of the grant of letters of administration, they were properly sued under section 82(a) of the Law of Succession Act.
The Defendants held letters of administration issued on 11th June 2019 in Murang'a Chief Magistrate Court Succession Cause No. 136 of 2019. Although the Plaintiffs had filed an application to revoke the grant not yet finalized, the grant remained subsisting. Under section 82(a), personal representatives may enforce or answer causes of action concerning the deceased's estate.
Whether the land was available for distribution in the succession cause
No - the land was encumbered by customary trust and was not a free property available for distribution to the deceased's beneficiaries.
Having found a customary trust, the registered owner could not hold the land absolutely. Trust and adverse possession are overriding interests capable of defeating a registered proprietor's absolute title. Consequently, the parcel was not free property for distribution under the confirmed grant of 6th February 2020.
Legal principles established
#- Customary trust is an overriding interest that subsists on registered land without being noted on the register and is not extinguished by the death of the title holder.
- Customary trust must be proved by sufficient evidence and courts do not imply it unless the intention to create it is clear.
- Adverse possession requires actual, open, continuous and exclusive possession for at least 12 years with intention to possess as owner, displacing the registered owner.
Court orders
#- 1.Judgment entered for the Plaintiffs against the Defendants jointly and severally in terms of prayers (a) and (b) of the Plaint dated 2nd August 2022
- 2.Declaration that Moses Murigi Muiruri held the suit property Makuyu/Makuyu/Block 1/921 in trust for himself and his siblings (the Plaintiffs)
- 3.Declaration that the Plaintiffs are entitled to the portion of the suit property in their occupation by adverse possession
- 4.The subsisting trust is dissolved and the suit land should be subdivided as utilized by the parties
- 5.Costs of the suit awarded to the Plaintiffs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over disputes relating to land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muiruri & 6 others v Murigi & another (Environment & Land Case E019 of 2022) [2024] KEELC 3638 (KLR)", Case Analysis (2024). ELC Case of 2022 (Murang'a). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3638/eng@2024-02-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.