Kapeen

approximately 2.8 cares to secure a loan with Barclays Bank and that it is the portion which the Defendants now claim and which they fraudulently intend to disinherit from them. 4. They claim that they have in the alternative acquired the suit property by virtue of Section 37 and 38 of the Limitation of Actions Act as read with Section 28 of the Land Registration Act. 5. They pray for judgement against the Defendants for; a. A permanent injunction be issued restraining the Defendants whether by themselves, agents, servants, employees or otherwise howsoever from evicting the Plaintis, entering ,destroying houses, selling, alienating, subdividing, occupying, erecting structures, or in any manner dealing with or interfering with the Plaintis’ occupation, use and ownership of the Plaintis’ ancestral home comprising approximately 40 acres and including the portion therein known as Narok/ Cismara/Ololulunga/158 measuring approximately 2.8 Hectares located in the Ololulunga area of Ololulunga District within Narok County. b. A declaration that the Plaintis are the legitimate and benecial owners of all that parcel of land forming part of their ancestral home and known as Narok/Cismara/Ololulunga/158 measuring approximately 2.8 Hectares and located in the Ololulunga area of Ololulunga District within Narok County. c. An order directing the Land Registrar Narok District to register the Plaintis as the lawful proprietors and benecial owners of all that land known as the Plaintis’ ancestral home measuring approximately 40 acres including the portion therein known as Narok/Cismara/ Olulunga/158 measuring approximately 2.8 Hectares all located in the Olulunga area of Ololulunga District within Narok County. d. Damages for trespass. e. Costs of this suit plus interest at court rates. f. Any other reliefs the Honourable court may deem t and expedient to grant. 6. The suit was opposed by the Defendants vide their amended statement of defence and counterclaim dated 31st January 2019.They denied allegations levelled against them and contended that their late father (David) is the registered proprietor of the suit land and that they have been in possession and occupation of a substantial portion of it while the plaintis are in occupation of ½ acre without their consent. Further, that the suit land was subject in Nairobi Succession Cause No.1214 of 2009, where the court issued a certicate of conrmation of grant wherein it is indicated the manner in which the suit property is to be shared amongst the beneciaries of the estate of David Lemomo Kapeen (deceased). 7. They contended that they have on numerous occasions verbally requested the Plaintis to vacate the portion they occupy but they have refused and persisted to do so. They counterclaim for orders; a. That the Plaintis’ suit be dismissed with costs. b. A declaration that the Defendants are entitled to exclusive unimpeded right of ownership, possession and occupation of all that parcel of land commonly described as Narok/ CISMARA/Ololulunga/158. c. Vacant possession of the suit property and general damages for trespass. d. Mesne prots. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22660/eng@2023-05-26 2

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e. Cost of the suit together with interest at court rates. Evidence of the Plaintis 8. The Plaintis called 3 witnesses. The 1st Plainti testied as PW1.She adopted her witness statement dated 17th March 2014 as her evidence in chief and produced the Plaintis’ list of documents in evidence. She conrmed that she was born and raised in the suit land and that it was their late parents only home, adding that the house on the suit land which her brothers the 2nd and 3rd Plaintis occupy to date was built in the 70’s. 9. She stated that remains of their parents Livingstone Koitamet Kapeen(deceased) and Salome Nasioku Kapeen(deceased) were buried on the suit land in 1995 and 2003 respectively while her sister and nice were al laid to rest on the same parcel in the year 2004 and 2002 respectively, in the absence of any dispute from any of their clan members /extended family. Further, that they have continued to occupy and cultivate the suit land even after the demise of their parents 18 years ago, until 5th March 2013 when the Defendants started demanding that they vacate and exhume their loved ones through the District Commissioner, Ololulunga District, claiming that they intend to sell the suit land. 10. She insisted that her late father had given out a portion of the suit land to the Defendants’ father who was his elder brother to enable him to procure a loan. 11. In cross-examination, PW1 stated that she did not know that the Defendants’ father had a title to the suit land until they were served. She insisted that the suit land belonged to her late father although he did not register it. 12. She claried that the suit land is 40 acres and not 2.8 as pleaded and further stated that her late father had 128 acres in Ngoben. Further, that she was not given any citation in Succession Cause No.1214 of 2009. 13. PW2 was Joseph Olekaria, a village elder within Olulunga area where the suit parcel is situated. His witness statement dated 16th January 2018 was adopted as his evidence in chief. He testied that he was born the same year with the Plaintis’ father (1948) and his home is adjacent to his thus they grew up together. His evidence was that he knew the Plaintis’ father as the owner of the suit parcel, together with his wife Salome and that they used to cultivate the parcel and rear livestock. 14. He stated that he never knew the Defendants because they did not frequent Olulunga home but he knew their father who was also a rare gure in Olulunga because he never had a home there and upon his death, he was laid to rest at Lang’ata cemetery. 15. During cross –examination, PW2 reiterated his evidence in chief. 16. PW3 was Kuntura Ole Kotioko, a village elder of Olepolis village in Olulunga. He adopted his witness statement dated 16th January 2018 as his evidence in chief. He testied that he was born in 1956 and knew the father to the Plaintis, who owned and lived in the suit land which he cultivated. It was his testimony that he never heard anybody claiming ownership of the suit parcel as it belonged to the late Livingstone. He also knew the Defendants’ father, late David Lemomo who used to stay in Nairobi and hardly went to the village because he did not have a home and when he died, he was buried at Lang’ata cemetery. He stated that he didn’t know most of David’s children save for Kevin Olanana who used to stay with his father’s elder brother called Samson who stays in Olulunga and came to know of his other children when they attended a dispute resolution session over the dispute herein in a clan meeting convened by the elders. He pointed out that at the said meeting, the parties had agreed to the elders’ proposal of subdividing the suit property into two halves but the Defendants later retracted. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22660/eng@2023-05-26 3

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17. In cross-examination, PW3 reiterated his evidence in chief. Defendant’s evidence 18. The Defendants called 2 witnesses. The 2nd Defendant testied as DW1.He adopted his witness statement dated 7th May 2014 as his evidence in chief. He stated that the suit property is registered in the name of his late father and that he had charged it to Barclays Bank of Kenya. He claimed that in the year 1994, his late father allowed the Plaintis’ father to utilize ½ an acre of the suit land on the understanding that they were all family members. The permission was conditional in that the Plaintis’ father would vacate the suit land on request. 19. He claimed that he had leased the parcel to one Stephen Pertet between the year 2000 and 2012 without any trespass allegations from the Plaintis thus their case is only meant to bend the facts herein. Further, that he applied for administration of the estate of his late father and the Plaintis did not object to inclusion of the suit parcel as the estate of the estate of David Lemomo Ole Kapeen. 20. In cross-examination, DW1 stated that the house on the suit parcel was built by his late father. Further, that from the green card of the suit parcel, the title was issued to his father in 1978.His father also owned 560 acres and another 140 acres in Maasai Mara. He stated that he moved to Narok in 1996 with his uncle Samson Kapeen after his father died. It is during tat time that he enrolled to Ntutu primary school. He conrmed that his father was buried at Lang’ata cemetery while his mother was buried in the United States of America. He insisted that the Plaintis’ father was allowed to use half an acre. 21. DW2 was Mario Rimanto Nyamu. She adopted her witness statement dated 7th May 2014 and her further statement dated 5th December 2019 as her evidence in chief. Her evidence mirrored that of DW2.She produced a certicate of conrmation of grant dated 10th February 2014, grant of letters of administration dated 19th March 2013, copy of green card and a letter dated 5th March 2014 in evidence. Submissions 22. The suit was canvassed by way of written submissions. The Plaintis led submissions dated 10th March 2021.They submitted that they had tendered evidence to demonstrate that the suit property is ancestral customary land belonging to them and its registration in the name of the Defendants’ father does not extinguish their ownership rights. To this end, they relied on the case of Re estates of Kioki Musya & another (deceased) [2017] eKLR. 23. They submitted that they are the true trustees having passed the threshold to be declared so as set by the Supreme court in the case of Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another [2018] eKLR as they had demonstrated that the suit land was family land before registration, their relationship with their father is not remote and they would have been entitled to be registered as owners but for the registration in the name of the Defendants’ late father. 24. They contended that the Defendants’ late father acquired the suit without any consideration thus he held the property subject to any unregistered rights and interests which the Plaintis had prior, which interest is customary trust. To this end, they relied on Section 27(1) of the Land Registration Act. 25. They faulted the Defendants for waving their late father’s title without demonstrating how he acquired proprietorship yet it was incumbent upon them to demonstrate the root of the said title. They pointed out that the Defendants failed to demonstrate that their late father got the necessary consent from the Land control board to sub-divide the suit land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22660/eng@2023-05-26 4

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26. They urged the court to rely on the doctrine of privity of estate and unity of estate which stipulates that a person cannot acquire interest /better title than that which ows from the original source. To this end, they relied on the case of Elizabeth Githinji& 29 others v Kenya Urban Roads Authority & 4 others [2019] eKLR. 27. They argued that while in Succession Cause No.1214 of 2009, the Defendants concealed material facts being their interest in the suit land, which fact is sucient to revoke the grant issued in the aforementioned succession cause. They also argued that the succession court did not determine the issue of ownership. 28. They invited the court to consider applying the doctrine and principle of proprietary estopell claiming that through conduct, the Defendants had made an assurance and a representation to them for 44 years to live, cultivate and bury their relatives on the suit land. 29. The Plaintis also relied on the case of Kiplagat kotut v Rose Jebor Kipngok [2019] eKLR, Dr. Leonard Kimeu Mwanthi v Rukaria M’twerandu M’iriungi [2013] eKLR and Ishmael Chepyegon & 12 others v Angela Cheptamos Tonje & 3 others [2017] eKLR. 30. On their part, the Defendants did not le written submissions. Determination 31. The Plaintis claim entitlement to the suit property by virtue of an alleged customary trust based on the allegation that their father inherited the suit parcel from their fore fathers. They claimed that they were born on the suit parcel, that they have lived there all their lives and that their parents and relatives are buried on the parcel. On their part, the Defendants claim that the suit land was registered in the name of their father and that he allowed the Plaintis’ father to use a portion of the same ½ an acre, purely on humanitarian ground as they were brothers. They also contended that a certicate of conrmation of grant was issued in Nairobi Succession Cause No.1214 of 2009 where the suit parcels forms part of the estate of their deceased father. 32. Having considered the pleadings, the witness testimonies and the submissions led, it is my nding that since the suit land has been subject of a past succession cause no. Nairobi Succession Cause No.1214 of 2009 and in consideration of grant made therein, I nd that the Plaintis have not proved that there was indeed a customary trust as the suit land was registered in the name of David Lemono Kapeen (deceased).Furthermore, the Plainti has failed to challenge the grant of representation issued therein. 33. I have considered the threshold for establishment of trusts as stated in the case of Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another [2018] eKLR and perceive gaps in establishing trust on the part of the Plaintis. However, since the Plaintis have been on the suit land for many years and have even buried their loved ones there. It is equitable that the parcel is divided between them. 34. Having considered that the parties are related and the suit property was jointly acquired by their parents, I order; I. A declaration is hereby issued that the Plaintis are entitled to 25 acres of the suit property known as Narok/Cismara/Ololulunga/158. II. A declaration is hereby issued that the Defendants are entitled to the remaining 15 acres. III. The registrar Narok shall eect registration of the respective parcels at the joint cost of the parties within 60 days of the judgement. IV. Each party shall bear their own costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22660/eng@2023-05-26 5

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DATED, SIGNED, AND DELIVERED AT NAROK THIS 26TH DAY OF MAY, 2023__ MOHAMMED A. KULLOW JUDGE In the presence of: Mr. Aswa for Plainti Mr. Masika for Defendant Tom Maurice: Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22660/eng@2023-05-26 6

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