Gathogo (Suing as the Legal Representative of Peter Gathogo Githinji - Deceased) v Wahome & 3 others (Environment and Land Appeal E016 of 2023) [2024] KEELC 5067 (KLR)
The bottom line
#Kenya's Environment and Land Court overturned a lower court decision, awarding a family land claimant 2 acres based on a decades-old Land Control Board consent.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Was the suit before the trial Court incompetent on grounds of the demise of the 1st Respondent prior to the filing of that suit?
- 2.Were the issues raised by the Appellant before the trial Court res judicata?
- 3.Was the trial Court correct in its holding that the Appellant failed to establish the existence of a customary trust in respect of the suit land?
- 4.Is the suit property subject to a Resulting trust?
Key legal issues
#Whether the trial suit was a nullity for having been filed against a deceased 1st Respondent
The suit was not a nullity as against the surviving respondents; in any event the appellant had obtained leave to withdraw the suit against the deceased 1st Respondent.
The court applied the Indian authorities approved in Viktar Maina Ngunjiri: a suit against a dead sole defendant is a nullity, but where one of several defendants is dead at filing, the proceedings are not void — only that defendant's name falls to be struck out. Since the suit was brought against four defendants, the surviving three claims stood. Further, leave to withdraw the suit against the 1st Respondent had been granted on 17th August 2022, so a valid suit subsisted against the 2nd to 4th Respondents.
Whether the issues were res judicata having regard to prior succession proceedings
The issues were not res judicata because the Succession Court lacked jurisdiction to determine questions of trust relating to land.
Section 7 of the Civil Procedure Act requires that the earlier suit be determined by a court competent to try the subsequent suit. The court held that trust questions over land fall within the exclusive jurisdiction of the Environment and Land Court under Section 13 of the Land and Environment Court Act and Article 162(2)(b) of the Constitution; a Succession Court distributing an estate cannot conclusively settle a claim of trust over registered land. The succession decisions therefore could not bar the present claim.
Whether the trial Court erred in treating the claim as one of customary trust
The facts pleaded pointed to a resulting trust, not a customary trust under Kikuyu customary law; the trial Court misdirected itself in that respect.
On re-evaluation of the pleadings — particularly paragraph 4 of the Plaint — and the evidence, the court found the appellant never alleged family or clan-based customary trust. The pleaded facts (combination of the two brothers' land to reach the road, agreed subdivision, Land Control Board consent, long occupation and development) weighed towards a resulting trust. The trial Court had, suo motu, framed the case around customary trust and the muramati concept, misconstruing the nature of the claim.
Whether the suit property is subject to a resulting trust
Yes — a resulting trust arose in favour of the appellant's father in respect of 2 Acres of Loc.14/Kiru/1227, and the appellant is entitled to it.
The Land Control Board consent application dated 20th June 1978, executed by the respondents' father as registered proprietor, expressed a clear intention to subdivide and transfer 2 Acres to the appellant's father. It was never impugned as a forgery nor his capacity questioned. The respondents' assertion that some unspecified condition failed was unsupported. The appellant had occupied and developed the 2 Acres since the 1970s. A resulting trust, as an overriding interest, survives registration under Sections 25, 26 and 28 of the Land Registration Act.
Legal principles established
#- A suit filed against several defendants does not become a nullity merely because one of them was dead at filing; the remedy is to strike out that defendant's name.
- A Succession Court has no jurisdiction to determine issues of trust relating to land; such disputes are reserved for the Environment and Land Court.
- Execution of an application for Land Control Board consent clearly expressing an intention to transfer a portion of land to another can found a resulting trust.
Court orders
#- 1.The decision of the trial Court delivered on 9th May, 2023, is upset and set aside in its entirety.
- 2.The Court holds and finds the Appellant is entitled to the 2 Acres of the suit property being Loc.14/Kiru/1227, which he is currently occupying and which is subject to a resulting trust in his favour.
- 3.The Appellant is entitled to the prayers sought in the Plaint dated 18th July 2019, in terms of prayers No. 1, 2 & 3.
- 4.Each party to bear its own costs before the trial Court and in respect of the present Appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Murang'a (ELC Case No. 8 of 2019)
- ELC Case No. 8 of 2019
- Jurisdiction invoked
- Section 65(1)(b) of the Civil Procedure Act; Section 13 of the Land and Environment Court Act; Article 162(2)(b) of the Constitution
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Court holds and finds the Appellant is entitled to the 2 Acres of the suit property being Loc.14/Kiru/1227, which he is currently occupying and which is subject to a resulting trust in his favour.
The decision of the trial Court delivered on 9th May, 2023, is hereby upset and set aside in its entirety.
the Court having set aside the Judgment of the trial Court dated 9th May 2023, finds and holds that the Appellant is entitled to the prayers sought in the Plaint dated 18th July 2019, in terms of prayers No. 1, 2 & 3.
a Succession Court is not possessed of any jurisdiction to determine issues of trust relating to land and the same mandate is exclusively reserved for this court pursuant to Section 13 of the Land and Environment Court Act.
if a suit has been filed against a number of persons one of whom happens to be dead when the proceedings were instituted, then the proceedings are not null and void but the court has to strike out the name of the party who has been wrongly joined.
The courts will not imply a trust save in order to give effect to the intention of the parties. The intention of the parities to create a trust must be clearly determined before a trust is implied.
Issues in the judgment
#Internal inconsistency on the date of the Land Control Board consent application: variously given as 1973 and 1978.
Inconsistent citation of the Nyeri succession cause, referred to as both Succ. Cause No.668 of 2011 and No. 650 of 2011.
Paragraph 4 of the Plaint is dated inconsistently as 18th July, 2019 and 18th May, 2023.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gathogo (Suing as the Legal Representative of Peter Gathogo Githinji - Deceased) v Wahome & 3 others (Environment and Land Appeal E016 of 2023) [2024] KEELC 5067 (KLR)", Case Analysis (2024). Not stated in the judgment as provided (appeal against Murang'a CM ELC No. 8 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5067/eng@2024-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.