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ELCAllowedELC Case of 2022 (Murang'a)· [2024] KEELC 3638 (KLR)

Muiruri & 6 others v Murigi & another (Environment & Land Case E019 of 2022) [2024] KEELC 3638 (KLR)

Environment and Land Court
29 February 2024
8,817 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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What this practically means

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Executive summary

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The Plaintiffs, siblings of the late Moses Murigi Muiruri, sued his children (the legal administrators of his estate) seeking a declaration that the deceased held land parcel Makuyu/Makuyu/Block 1/921 in trust for his siblings, and a declaration of adverse possession, contending their mother Eunice Wambui Muiruri purchased the land but, lacking an ID card, had it registered in the name of her elder son to hold in trust, as was then customary. The Defendants denied the purchase and the trust, asserting the deceased was absolute owner, that the Plaintiffs were mere licensees, and that possession was permissive so adverse possession could not arise. The court found the Defendants properly sued under section 82(a) of the Law of Succession Act. Applying the Supreme Court's M'inanga principles on customary trust and section 30(g) of the repealed Registered Land Act, the court accepted the unshaken evidence of PW4, an 82-year-old step-brother, that the mothers purchased the land and registered it in their elder sons' names in trust, and held the customary trust proved. On adverse possession, the court found the Plaintiffs in open, continuous and exclusive occupation of a distinct one-acre portion for over 12 years after the owner's death in 2003, dispossessing him. The licensees allegation was dismissed. Judgment was entered for the Plaintiffs in terms of prayers (a) and (b), the trust was dissolved, the land to be subdivided as utilized by the parties, with costs to the Plaintiffs.

Key legal issues

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01

Whether customary trust was established over the suit land

Holding

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.

Reasoning

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.

02

Whether the Plaintiffs acquired title by adverse possession

Holding

Yes - the Plaintiffs occupied their distinct one-acre portion openly, continuously and exclusively for over 12 years, dispossessing the registered owner.

Reasoning

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.

p. 15
03

Whether the Defendants were properly sued as legal representatives

Holding

Yes - as holders of the grant of letters of administration, they were properly sued under section 82(a) of the Law of Succession Act.

Reasoning

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.

p. 8
04

Whether the land was available for distribution in the succession cause

Holding

No - the land was encumbered by customary trust and was not a free property available for distribution to the deceased's beneficiaries.

Reasoning

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.

p. 14

Legal principles established

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  • 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

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  1. 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. 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. 3.Declaration that the Plaintiffs are entitled to the portion of the suit property in their occupation by adverse possession
  4. 4.The subsisting trust is dissolved and the suit land should be subdivided as utilized by the parties
  5. 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

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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, "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.