Kimene (Being Sued on Behalf of the Estate of Isaac Kimene Nabea alias Isaac Gituma Nabea) v Murithi (Environment and Land Appeal E021 of 2023) [2024] KEELC 3799 (KLR)
The bottom line
#A Kenyan court upheld a family land trust because the title holder could not explain how the land was acquired, confirming trusts have no time limit.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent pleaded and proved the trust claimed against the appellant
Yes - the plaint pleaded that the respondent caused the land to be registered in the names of his son and brother to hold in trust for him, and this was not rebutted by the appellant.
The plaint and witness statement disclosed the trust at the earliest opportunity, including that the respondent bought the land for value during adjudication and registered it in the names of his minor son and brother to hold in trust. The initial defendant did not respond to these facts in his defence, and the appellant tendered no rebuttal evidence on the pre-1983 history, including no copy of the register showing entries before 1983.
Whether the appellant proved the manner he acquired the suit land
No - the appellant did not plead the events between 1967 and 1982, failed to produce the pre-1983 register entries, and called no witnesses to support the claim of inheritance.
The defence only asserted use and occupation before registration in 1983 without stating the capacity of occupation or who the registered owner was before 1983. The appellant, born in 1975, could not have been privy to events of 1957–1967 and did not tender documentary proof of the change of names or call any of his father's siblings or the co-legal representatives to substantiate the inheritance narrative.
Whether the trial court erred by deviating from the pleadings or showing bias
No - the trial court correctly confined itself to the pleadings and issues; the appellant misconstrued the trust pleaded as customary trust.
The respondent filed a list of five issues while the appellant filed none; the pleaded trust was one arising from registration of the respondent's purchase in the names of his son and brother, not customary or ancestral trust. The appellant's reliance on customary trust ingredients demonstrated misapprehension of the pleadings, and no evidence of bias or deviation from pleadings was substantiated.
Whether the trust alleged was barred by limitation
No - limitation does not apply to trusts under section 41 of the Limitation of Actions Act.
The preliminary objection on limitation had already been dismissed by a ruling dated 9.9.2020, and the court reaffirmed that section 41 of the Limitation of Actions Act excludes limitation in respect of trusts.
Legal principles established
#- Trust is a matter of fact to be proved by evidence, and where the root of a registered title is challenged, the proprietor must explain how the title was acquired; failure to rebut the presumption of trust leaves the trust standing.
- Limitation of time does not apply to trusts.
- Parties are bound by their pleadings and a court may only pronounce judgment on issues arising from the pleadings.
Court orders
#- 1.The appeal is dismissed with costs to the respondent.
- On appeal from
- Trial court (magistrates' court, not specified)
- Not stated
- Jurisdiction invoked
- First appeal from the trial court; appellate jurisdiction over facts and law (appellant was defendant, respondent was plaintiff at the lower court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimene (Being Sued on Behalf of the Estate of Isaac Kimene Nabea alias Isaac Gituma Nabea) v Murithi (Environment and Land Appeal E021 of 2023) [2024] KEELC 3799 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3799/eng@2024-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.