Macharia v Macharia & 3 others (Environment and Land Appeal E013 of 2023) [2024] KEELC 3703 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Existence and proof of customary trust
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.
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.
Right to be heard and setting aside default judgment
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.
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.
First appellate court's duty
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.
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.
Legal principles established
#- 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
#- 1.The Appeal dated 9th May 2023 is allowed with costs of the Appeal and at the trial court to the Appellant
- 2.The Judgment of the trial Court delivered on 26th April 2023 is set aside entirely with costs to the Appellant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.