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ELCAllowedMurang'a ELCA No. E060 of 2023 (Memo of Appeal dated 9th May 2023, from Murang'a MCELC No. E060 of 2023)· [2024] KEELC 3703 (KLR)

Macharia v Macharia & 3 others (Environment and Land Appeal E013 of 2023) [2024] KEELC 3703 (KLR)

Environment and Land Court of Kenya
9 May 2024
8,495 words in judgment
View original judgmentRead on Kenya Law Watch case
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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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This is a first appeal to the Environment and Land Court at Murang'a (L. Gacheru, J) against the judgment of Hon. S. N. Mwangi (SRM) delivered on 26th April 2023 in Murang'a MCELC No. E060 of 2023. At the trial, the Respondents (plaintiffs, children of the third wife of the family patriarch) sued their step-brother, the Appellant, for a declaration that he holds land parcel Loc. 2/Mariira/185 in trust for them to the extent of 4 acres, plus a permanent injunction. The suit land had been gifted inter vivos by the patriarch to Serah Waithera Macharia, the Appellant's mother, in 1984, and transmitted to the Appellant in succession proceedings in 2015. The Appellant's Defence and Counter-claim, filed out of time, was expunged; his application for leave to file it out of time was rejected on an unproved finding that its receiving stamp was backdated, and the matter proceeded by formal proof, resulting in judgment for the Respondents. On appeal, the court re-evaluated the evidence. It held that customary trust must be proved by clear evidence of intention, none of which existed; the completed gift inter vivos made Serah Waithera absolute owner, and any grievance about distribution lay in succession proceedings, not a trust claim. The court further held that the trial court erred in denying the Appellant a hearing without evidence of backdating, since placement of documents on file is the Registry's duty. The appeal was allowed, the trial judgment set aside entirely, with costs of the appeal and the trial to the Appellant.

Key legal issues

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01

Existence and proof of customary trust

Holding

The Respondents failed to prove a customary trust over the suit land; the gift inter vivos to Serah Waithira Macharia in 1984 was completed on registration, making the land her absolute property, transmissible to her estate.

Reasoning

The court, guided by M'Inanga v M'Lintari, re-evaluated the evidence and found nothing on the register or in the evidence evidencing an intention to create a trust. The patriarch could have subdivided the land between his two wives if that was his intention. The Respondents did not call their mother or other supporting witnesses, and the adverse presumption from failure to call a witness applied.

p. 10
02

Right to be heard and setting aside default judgment

Holding

The trial court erred in refusing to entertain the Appellant's application for leave to file his Defence out of time on an unproved allegation of backdating the receiving stamp, and in condemning him unheard.

Reasoning

The application bore a receiving stamp of 6th January 2023 from the Registry; placing documents in the court file is the duty of Registry staff, not the litigant. There was no evidence of backdating. Guided by the principles in Patni, Patel and Abdalla Mohammed, the Defence raised triable issues and should have been admitted so the Appellant could ventilate his case.

p. 11
03

First appellate court's duty

Holding

As a first appellate court, the ELC has a duty to reconsider, re-evaluate and re-analyse the evidence and reach its own independent conclusions while allowing for the fact it neither saw nor heard the witnesses.

Reasoning

Relying on section 78 of the Civil Procedure Act and Selle v Associated Motor Boat Co., the court undertook a fresh evaluation of the evidence from the record and the original lower court file before interfering with the trial court's discretionary decision per Mbogo v Shah.

p. 4

Legal principles established

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  • Customary trust must be proved by evidence; the court will not presume a trust save in case of absolute necessity, and the intention of the parties to create the trust must be clearly determined.
  • A completed gift inter vivos, upon registration, confers absolute ownership primA facie, defeasible only by proved overriding interests such as customary trust.
  • A regular default judgment may be set aside where the defence raises triable issues, there is no prejudice to the plaintiff, and there is an explanation for the delay; mistakes of counsel should not be visited on the client.

Court orders

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  1. 1.The Appeal dated 9th May 2023 is allowed with costs of the Appeal and at the trial court to the Appellant
  2. 2.The Judgment of the trial Court delivered on 26th April 2023 is set aside entirely with costs to the Appellant

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 50(1)
  • Civil Procedure ActSections 3A, 65, 78, 79B
  • Civil Procedure RulesOrder 7, Order 10 rule 11, Order 11
  • Registered Land Act (Cap 300, repealed)Sections 27, 28, 30(g)
  • Land Registration Act, 2012Section 28(b)

Cases cited (24)

  • David Bundi v Timothy Mwenda Muthee
    (2022) eKLR
  • Sangram Singh v Election Tribunal Kotch
    AIR 1955 SC 664
  • Selle & Another v Associated Motor Boat Co. Ltd & Others
    {1968} EA 123
  • Mbogo & Another v Shah
    [1968] EA, p.15
  • Abok James Odera t/a A. J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates
    (2013) eklr
  • Peter M. Kariuki v Attorney General
    [2014] eKLR
  • Isaack Kieba M'Inanga v Isaaya Theuri M'Lintari & Another
    SCOK NO. 10 of 2015
  • Kanyi v Muthiora
    (1984) KLR 712
  • Juletabi African Adventure Ltd & Another v Christopher Michael Lockley
    (2017) eklr
  • Njenga Chogera v Maria Wanjiru Kimani & 2 others
    (2005) eklr
  • Muthuita v Muthuita
    (1982-88) 1 KLR 42
  • Peter Ndungu Njenga v Sophia Watiri Ndungu
    (2000) eklr
  • Bukenya & Another v Uganda
    (1972) E.A 549
  • Kamlesh Mansukhalal Damki Patni v Director of Public Prosecution & 3 Others
    [2015] eKLR
  • Winnie Wambui Kibinge & 2 Others v Match Electricals Limited
    (2012) eKLR
  • Patel v East Africa Cargo Handling Services Ltd
    (1974) EA 75
  • Richard Nchapai Leiyangu v IEBC & 2 Others
    (2013) eKLR
  • Lee G. Muthoga -v- Habib Zurich Finance (K) Ltd & Another
    Civil Application No. Nair 236 of 2009
  • Abdalla Mohammed & Another v Mbaraka Shoka
    (1990) eKLR
  • Job Kilach v Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono
    (2015) eKLR
  • Lalji t/a Vakkep Building Contractors v Casousel Ltd
    (1989) KLR
  • Jomo Kenyatta University of Agriculture and Technology v Musa Ezekiel Oebal
    (2014) eKLR, CA 217/2009
  • Shah v Mbogo & Another
    (1967) EA 116
  • Sebei District Administration v Gasyali & others
    (1968) EA 300
On appeal from
Chief Magistrate's Court, Murang'a (Environment and Land)
Murang'a MCELC No. E060 of 2023
Jurisdiction invoked
Sections 65 and 78 of the Civil Procedure Act (first appeal on law and fact); appeal admitted under section 79B of the Civil Procedure Act

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, "Macharia v Macharia & 3 others (Environment and Land Appeal E013 of 2023) [2024] KEELC 3703 (KLR)", Case Analysis (2024). Murang'a ELCA No. E060 of 2023 (Memo of Appeal dated 9th May 2023, from Murang'a MCELC No. E060 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3703/eng@2024-05-09

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