Muketha v Kimathi & another (Environment and Land Appeal E007 of 2023) [2024] KEELC 7324 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that putting family land in one person's name doesn't defeat customary trust claims by other family members.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.If the trial court had jurisdiction to hear the suit
- 2.If the respondents proved customary trust to be entitled to the reliefs sought
- 3.If the appeal has merits
- 4.What is the order as to costs
Key legal issues
#Competency of the appeal
The appeal was incompetent because the record of appeal and supplementary record were unpaginated, incomplete and uncertified, omitting pleadings, witness statements, exhibits and the judgment of the lower court
The court found that the record of appeal did not contain all pleadings and exhibits relied on in the lower court: the reply to defence, list of witnesses, statements and documents were missing, proceedings were not certified, and the lower court judgment was not included. This offended Order 42 Rule 13(4) of the Civil Procedure Rules. An appeal was struck out on similar grounds in Kenya Commercial Finance Co. Ltd vs Richard Akwesera Onditi.
Jurisdiction of the trial court over customary trust notwithstanding the succession cause
The trial court had jurisdiction because probate and administration jurisdiction does not extend to customary, family, implied or constructive trusts; such claims fall within the pecuniary jurisdiction of lower courts
The court held that the probate jurisdiction governs identification of free property, beneficiaries and distribution, but does not cover customary, family, implied and constructive trusts save for continuing trusts for minors. Lower courts may determine customary trust claims within their pecuniary limits under Section 7 of the Magistrates Act and Section 26 of the Environment and Land Court Act. Registration through a succession cause therefore could not defeat a customary trust claim, and no limitation applies to trust claims.
Whether customary trust was proved
Customary trust was proved: the land was family/ancestral land initially registered in the deceased's name, the respondents were his grandchildren not remote, and the appellant as firstborn was registered to hold in trust for the family
Applying the Kiebia vs M'lintari elements, the court found elements 1-5 admitted or proved. The land belonged to the deceased before registration; the respondents belong to the family; their relationship is not remote; they could have been registered but for the unilateral succession; and the claim is against a registered proprietor who is a family member. DW 2's evidence that no child is greater or lesser supported the patriarch's intention. The absence of documentary proof of a gift inter vivos and the exclusion of John Gitonga and the widow from the succession confirmed the trust.
Whether the respondents' rights were extinguished by the subsequent subdivision and transfer to the 2nd - 5th defendants
The respondents' overriding interests survived the transfer; the 2nd - 5th defendants did not appeal and offered no evidence at trial
The court held that trust is an equitable remedy and the appellant, having taken advantage of his trusteeship to subdivide and transfer the land to his children with knowledge of the overriding interests, could not unjustly enrich himself. The rights of the respondents were not extinguished by the resultant transfers, and since the 2nd - 5th defendants neither appealed nor disputed the claim with evidence, the trial court's conclusion stood.
Legal principles established
#- Lower courts have jurisdiction to determine customary trust claims where the value of the subject land falls within their pecuniary jurisdiction; probate and administration jurisdiction does not cover customary, family, implied and constructive trusts
- There is no limitation period for a claim based on trust
- Registration of family land in the name of a firstborn son does not defeat a customary trust claim by other family members
Court orders
#- 1.The appeal is dismissed for incompetence and for lack of merits
- 2.Costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (trial court, not named in the judgment)
- not stated in the judgment
- Jurisdiction invoked
- First appeal under Order 42 of the Civil Procedure Rules; pecuniary jurisdiction for customary trust claims under Section 7 of the Magistrates Act and Section 26 of the Environment and Land Court Act
Relief refused
#The appellant's appeal against the trial court judgment allowing the respondents' claim
The record of appeal was incomplete and uncertified, offending Order 42 Rule 13(4) of the Civil Procedure Rules, and the appeal lacked merits as customary trust was proved
Costs
Costs to the respondents
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.
I therefore find the appeal incompetent for it ofiends Order 42 Rule 13 (4) of the Civil Procedure Rules.
Lower courts therefore have jurisdiction to handle customary trusts so long as the value of the subject land falls under their pecuniary jurisdiction under Section 7 of the Magistrates Act and Section 26 of the Environment and Land Court Act.
Equally, the is no limitation of a claim based on trust as provided by Section 20 (2) of the Limitation of Actions Act.
The registration of the suit land in the name of the appellant in 1973 did not therefore defeat any claim as held in Mukangu vs Mbui [2004] eKLR and in Kanyi vs Muthiora 1984) KLR 712.
The appeal is hereby dismissed for incompetence and for lack of merits. Costs to the respondents.
Customary trust is a matter of fact which is established by leading evidence.
Issues in the judgment
#Internal inconsistency in the defence evidence on when the respondents' father died and the 1964 sharing - DW 1 variously states the late father was shared land in 1964 yet also that he was a minor in 1973 and died in 1988
The court identified the first issue as trial court jurisdiction but then determined competency of the appeal first, addressing jurisdiction under the second limb
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muketha v Kimathi & another (Environment and Land Appeal E007 of 2023) [2024] KEELC 7324 (KLR)", Case Analysis (2024). Not stated in the judgment (memorandum of appeal dated 20.7.2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7324/eng@2024-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.