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ELCPartially AllowedNot stated in the judgment· [2024] KEELC 3801 (KLR)

Murithi & 6 others v Mwithimbu (Environment and Land Appeal E082 of 2022) [2024] KEELC 3801 (KLR)

Environment and Land Court
8 May 2024
CNC K Nzili
3,027 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled children cannot claim their father's land as customary trust without proof, but a signed gift agreement must be honoured.

What this practically means

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Executive summary

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The appellants, as plaintiffs before the magistrates' court, sued their father for breach of customary trust over L.R No. Kibirichia/Ntumburi/406, alleging it was ancestral or family land held in trust for them, and sought a declaration plus orders stopping subdivision, sale or transfer. The respondent denied the customary claim, averring he solely acquired the land as a former police officer after leaving his ancestral land at Abothuguchi/Githongo/131. He counterclaimed for eviction and a permanent injunction, having subdivided the land to gift shares to the children and to his second wife. The trial court dismissed the suit, and the appellants appealed on eight grounds, contending they had proved trust by long occupation and permanent homes built with parental permission. On appeal, C K Nzili J reviewed the evidence afresh. The court applied the Kiebia M'Inanga elements of customary trust and found the appellants led no evidence that the land was family, clan or group land before its registration in the respondent's name on 30.7.1991. The court held that a parent has no legal duty to share his land with his children, that constructive trust and proprietary estoppel could not be raised for the first time on appeal without leave, and that the appellants' beneficial interest had not accrued and could not be enforced during the respondent's lifetime. However, the court found a valid agreement at the chief's office and a mutation form evidencing the respondent's intention to gift shares, held the respondent had in essence admitted the appellants' claim, and allowed the appeal, ordering the parties to actualize the agreement, with the appellants bearing subdivision and transfer costs, default execution by the Deputy Registrar, and no orders as to costs. The Jane Wanjiru Kiarie case was distinguished.

Key legal issues

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01

Proof of customary trust

Holding

The appellants failed to prove the land was family or clan land before registration; no customary trust established

Reasoning

The search showed registration in the respondent's name on 30.7.1991. Apart from caution letters, no evidence was led on the history of the land. The respondent's evidence, corroborated by witnesses and documents, showed he solely acquired the land after leaving the ancestral land at Abothuguchi/Githongo/131.

p. 4
02

New issues on appeal

Holding

Appellants could not raise constructive trust or proprietary estoppel for the first time on appeal

Reasoning

Parties are bound by pleadings and the record contained no reply to the defence and counterclaim. Constructive trust and proprietary estoppel were never pleaded and cannot be introduced on appeal without leave and evidence.

p. 5
03

Enforcement of the chief's office agreement and mutation form

Holding

The respondent's promise to gift the appellants shares should be upheld and enforced as unconscionability would otherwise arise

Reasoning

There was a valid agreement at the chief's office followed by a mutation form. The justice of the matter demands enforcement of the respondent's intention to confirm and resettle the appellants, guided by Article 159 encouraging alternative dispute resolution.

p. 5

Legal principles established

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  • Elements of customary trust must be proved: land family/clan/group land before registration, claimant's membership, non-remote relationship, entitlement but for intervening circumstances, and claim against a registered proprietor within the group
  • A parent has no legal duty to share his land with his children absent proof of trust
  • An appellate court must conduct independent review while respecting the trial court's advantage of seeing witnesses

Court orders

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  1. 1.Appeal allowed
  2. 2.Parties to proceed to actualize the agreement signed before the area chief and follow up through the mutation form
  3. 3.Appellants to meet the cost of the subdivisions and transfers
  4. 4.If the respondent defaults to sign the transfers within two months, the Deputy Registrar of the court shall execute them
  5. 5.No orders as to costs

Authorities

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Legislation

  • Land Registration ActSections 25(1) & 28
  • Evidence ActSections 107-109
  • Civil Procedure RulesOrder 2 Rule (6)
  • Constitution of KenyaArticle 159

Cases cited (11)

  • Kiebia M'Inanga vs Isaaya Theuri M'Lintari
    (2018) eKLR
  • Kanyi vs Muthiora
    (1984) KLR 712
  • Selle vs Associated Motor Boat Co. Ltd
    (1968) E.A 123
  • Kiruga vs Kiruga and another
    (1988) KLR 348
  • Doge vs Kenya Canners Ltd
    (1985) eKLR
  • IEBC & another vs Muitnda Mule & others
    (2014) eKLR
  • Mohammed Abdi Mohamad vs Ahmed Abdullahi Mohamed & others
    (2018) eKLR
  • Daniel Toroitich Moi vs Mwangi Stephen Murithi & another
    (2014) eKLR
  • Peter Ndungu Njenga vs Sophia Watiri Adungu
    (2000) eKLR
  • Twalib Hatayan Twalib Hatayan & another vs Said Saggar Ahmed AL Heidy & others
    (2015) eKLR
  • Jane Wanjiru Kiarie & another vs Maria Wanjiku & another
    (2008) eKLR
On appeal from
Magistrates' Court
not stated
Jurisdiction invoked
First appeal from the trial court; appellate court of first instance re-examining the entire record

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, "Murithi & 6 others v Mwithimbu (Environment and Land Appeal E082 of 2022) [2024] KEELC 3801 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3801/eng@2024-05-08

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