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ELCPartially AllowedNot stated in the judgment· [2024] KEELC 3920 (KLR)

Kamau & 8 others v Mohoyo & 4 others (Environment & Land Case 18 of 2021) [2024] KEELC 3920 (KLR)

Environment and Land Court
15 May 2024
5,115 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a mother's unequal land subdivision, ruling that family land given to one person by consent is held in trust for all children, daughters included.

What this practically means

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Executive summary

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Nine children of the late Livingstone Kamau Rufius sued their mother (1st defendant), three siblings (2nd-4th defendants) and a surveyor firm (5th defendant) over land parcel Mau Narok/Siapei Block 3/413 (Mutukanio A). The parcel, the main asset of the deceased's estate, devolved to the 1st defendant by consent at confirmation of grant in Nakuru Succession Cause No. 76 of 2015, was transmitted to her in 2017, and in October 2019 was subdivided into ten parcels by the 5th defendant, with large portions going to some sons and daughters, and some children left out entirely. The plaintiffs claimed they were beneficial owners and that an implied trust bound their mother to subdivide fairly among all children, seeking an injunction, cancellation of the new registers, reinstatement of the original title and a fresh subdivision. The defendants raised a preliminary objection that the suit concerned succession and was res judicata. The court held that after confirmation of grant the succession court became functus officio, and that the dispute, concerning title, use and occupation of registered land post-transmission, fell within its jurisdiction under Article 162(2)(b) and section 13 of the Environment and Land Court Act. It further held the suit was not res judicata since the earlier succession application sought revocation of a grant. Applying Peter Ndungu Njenga v Sophia Watiri Ndungu, the court found the consent to devolve the whole parcel to the mother created an implied trust obliging her to subdivide for all beneficiaries, and that excluding eight children, including daughters, breached that trust. Judgment was entered for the plaintiffs: injunction, cancellation of the subdivided registers, reinstatement of the original title, and a fresh survey with registration to all beneficiaries. No costs were awarded, this being a family dispute.

Key legal issues

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01

Jurisdiction of the ELC over a dispute rooted in succession

Holding

The court has jurisdiction because the dispute concerns title, use and occupation of registered land post-transmission, not the distribution of a deceased's estate

Reasoning

The court held that no dispute existed until after transmission, when the 1st defendant subdivided and registered portions in her name. After confirmation of grant the succession court became functus officio. The dispute concerns title, use and occupation of land, matters within Article 162(2)(b) and section 13 of the Environment and Land Court Act.

p. 7
02

Whether the suit is res judicata

Holding

The suit is not res judicata because the earlier application in Succession Cause No. 76 of 2015 concerned revocation of a grant and interim restraint, not the present implied-trust claim

Reasoning

The court accepted the plaintiffs' submission that the application of 26th November 2019 in the succession cause sought revocation of the grant and an interim injunction against administrators, in the parties' capacity as administrators. The present suit concerns the mode of subdivision post-transmission, in personal capacities, hence different parties in different capacities and different issues.

p. 5
03

Whether an implied trust arose in favour of all the children

Holding

Yes - by consenting to devolve the whole parcel to their mother, the children appointed her trustee, and she breached that trust by excluding eight children including the girls

Reasoning

The court, guided by Peter Ndungu Njenga v Sophia Watiri Ndungu, found the parties' intention to create a trust clearly determined: all beneficiaries consented to the property devolving to the mother to share with all children. Only 4 of 12 children were allocated land, and the exclusion of daughters breached the implied trust. The subdivision into 10 parcels against 13 beneficiaries was against the spirit of the confirmation of grant.

p. 10

Legal principles established

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  • Courts will not imply a trust save to give effect to the intention of the parties; the intention must be clearly determined before a trust is implied
  • Beneficiaries who consent to a confirmation of grant devolving the whole estate to one person thereby appoint that person trustee of the property for all beneficiaries
  • After issuance of the confirmation of grant the succession court becomes functus officio, and post-transmission disputes over title, use and occupation of land fall within the ELC's jurisdiction

Court orders

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  1. 1.Permanent injunction restraining the 1st, 2nd, 3rd and 4th defendants from transferring, selling, subdividing, alienating and/or otherwise dealing with land parcels Mau Narok/Siapei Block 3/1483 to 3/1492 (Mutukanio A)
  2. 2.Cancellation of the registers of the subdivided parcels and reinstatement of the register for title number Mau Narok/Siapei Block 3/413 (Mutukanio A) to its position prior to the sub-division by mutation dated 24th October 2019
  3. 3.Upon reinstatement, a fresh survey to be done in the presence of all interested parties by a jointly appointed surveyor for sub-division and registration in the names of each beneficiary of the estate of Livingstone Kamau Rufius
  4. 4.No orders as to costs
Jurisdiction invoked
Article 162(2)(b) of the Constitution as read with section 13 of the Environment and Land Court Act, 2011

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, "Kamau & 8 others v Mohoyo & 4 others (Environment & Land Case 18 of 2021) [2024] KEELC 3920 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3920/eng@2024-05-15

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