[2007] KEHC 1182 (KLR)
The court found that the defendant, though registered as proprietor of the suit land, held it in trust for his brothers, the plaintiffs, in accordance with their late father's intention. The plaintiffs had been in continuous, undisturbed possession and cultivation of the land for over 40 years, satisfying the...
Source-derived case information.
- Citation
- [2007] KEHC 1182 (KLR)
- Parties
- Plaintiff: Francis Gachira Kariuki; Plaintiff: Macharia Kamau; Plaintiff: John Maina Kariuki; Plaintiff: Edward Njoroge Kamau; Defendant: Joseph Ndegwa Kariuki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 418 of 2003
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Judgment for the plaintiffs. The defendant holds the land in trust and the land is to be apportioned equally among the five sons. Costs awarded to the plaintiffs.
- Legal Topics
- Adverse Possession, Trusts in Land, Land Registration, Family Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Gachira Kariuki
Plaintiff
Macharia Kamau
Plaintiff
John Maina Kariuki
Plaintiff
Edward Njoroge Kamau
Plaintiff
Joseph Ndegwa Kariuki
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the defendant holds the suit land in trust for the plaintiffs.
- 2 Whether the plaintiffs have acquired title to the suit land by adverse possession.
- 3 How the suit land should be apportioned among the parties.
Ratio Decidendi
The court found that the defendant, though registered as proprietor of the suit land, held it in trust for his brothers, the plaintiffs, in accordance with their late father's intention. The plaintiffs had been in continuous, undisturbed possession and cultivation of the land for over 40 years, satisfying the requirements for adverse possession. The defendant's refusal to share the land did not negate the trust or the plaintiffs' rights acquired by adverse possession. The court ordered that the land be apportioned equally among the five sons, each receiving 0.6 acres, reflecting both the trust and the period of occupation.
Court Disposition
Judgment for the plaintiffs. The defendant holds the land in trust and the land is to be apportioned equally among the five sons. Costs awarded to the plaintiffs.
Orders
- The defendant holds the suit land in trust for the plaintiffs.
- The land LR Loc/8/Gatara/537 shall be apportioned equally among the five sons at 0.6 acres each.
Full Case Text
Judgment text and source record
46 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 418 of 2003
1. Land and Environmental Law Division
2. Subject of main suit land.
a) Adverse Possession
LR Loc/8/Gataa/537
b) Plaintiff 1 – 4 and defendant are brothers
c) Suit property Loc/8/Garara/537 measuring 3 .0 acres registered in defendants name 1957-1962
d) Intention of father that son hold land in equal share
e) In possession since 1965 – cultivating
f) Intention of father – important to sons
3. Defendant – Land was his gift
4. Held:
a) The defendant holds the suit land in trust of the plaintiff
b) That the land be apportioned according to the intention of the father to parties wish namely 0. 6 per person/son
5. Case law – nil
6. Advocate:
L. M. Kinuthia for L.M. Kinuthia & Co. Advocates for the plaintiff – present
Joseph Ndegwa Kariuki defendant in person – absent
FRANCIS GACHIRA KARIUKI …………………………......1ST PLAINTIFF
MACHARIA KAMAU ………………..……………………… 2ND PLAINTIFF
JOHN MAINA KARIUKI ……………………...…….………. 3RD PLAINTIFF
EDWARD NJOROGE KAMAU …………………...…………4TH PLAINTIFF
VERSUS
JOSEPH N. KARIUKI …………………………......……….…..DEFENDANT
RULING
1: Background of case
1. The plaintiff No.1 – 4 are brothers. The defendant is also their brother. I am not told if there are any sisters in the family.
2. The father to the parties obtained land in his name. As he was not permitted to get this land during the demarcation period he registered a second piece of land in the name of his first born son then aged 8 years old. When the said son was old enough, the mother to the parties used the land in question to cultivate. This was Loc.8/Gatara/537. This land was also being cultivated by each of the brothers. Each party had a portion to both parcel of land.
3. When the parents died, the defendant claimed the land registered in his name. He refused to share the same although the brothers had cultivated the piece of land for 44 years undisturbed.
4. The matter was heard before various quasi judicial body and the same decisions were set aside due to lack of jurisdiction.
5. The defendant stated that the land was his and did not hold the same in trust.
6. The plaintiff filed this originating summons to sought for the determination of the question in issue.
II: Finding
7. In the case law of Mwangi and Another v Mwangi Hccc (1986) KLR 328.
8. The issue of trust was considered in this case law. The land was registered in the name of the defendants as a young man. The plaintiff remained in occupation for 20 years. That during the said 20 years he did not denounce the occupation of land by the other party. This meant that title had acquired by adverse Possession.
9. I hereby enter judgment for the plaintiff. I found and order that he did acquire title by way of Adverse Possession.
10 That each party be apportioned 0. 6 acres of the land amongst the five sons. I understand, one died and or the father and mother. The land is said to be 3 acres.
11. I award the costs of this suit to the plaintiffs 1 – 4.
Dated this 31st day of July 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
L.M. Kinuthia for L.M. Kinuthia & Co. Advocates for the plaintiff – present
Joseph Ndegwa Kariuki defendant in person - absent