[2014] KEHC 260 (KLR)
The court adopted the consent reached by the parties, which provided for the transfer of one acre of land to the respondent to encompass his developments, with the remainder to remain with the 2nd appellant. The consent resolved the dispute on terms that recognized both the respondent's occupation and the...
Source-derived case information.
- Citation
- [2014] KEHC 260 (KLR)
- Parties
- Appellant: Jackim Kithinji Mutuathuku; Appellant: Lucy Karimi Amandara; Respondent: Julius Gikunda Athili
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 48 of 2002
- Procedural Posture
- Civil Appeal / Appeal Judgment With Consent Settlement
- Outcome
- Appeal settled by consent; terms adopted as order of the court.
- Judges
- FM Njoroge
- Legal Topics
- Land Transfer, Trusts in Land, Family Property Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackim Kithinji Mutuathuku
Appellant
Lucy Karimi Amandara
Appellant
Julius Gikunda Athili
Respondent
Procedural Posture
Civil Appeal / Appeal Judgment With Consent Settlement
Legal Issues
- 1 Whether the doctrine of trust applied to the transfer of land parcel ABOGETA/U-CHURE/387.
- 2 Whether the 1st Appellant had an unfettered right to transfer the land to the 2nd Appellant.
- 3 Whether the trial magistrate erred in law by finding in favour of the respondent without particulars of trust pleaded.
Ratio Decidendi
The court adopted the consent reached by the parties, which provided for the transfer of one acre of land to the respondent to encompass his developments, with the remainder to remain with the 2nd appellant. The consent resolved the dispute on terms that recognized both the respondent's occupation and the appellants' proprietary rights, reflecting the family context and the need for peaceful coexistence. The appeal was marked as settled, and the consent terms were made an order of the court, precluding any future resurrection of the dispute by the parties.
Court Disposition
Appeal settled by consent; terms adopted as order of the court.
Orders
- One acre of L. R. No. ABOGETA/U-CHURE/387 to be transferred to the respondent by the 2nd appellant.
- The one acre to encompass the respondent's developments on the land.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL APPEAL NO.48 OF 2002
JACKIM KITHINJI MUTUATHUKU..................................................1ST APPELLANT
LUCY KARIMI AMANDARA............................................................2ND APPELLANT
VERSUS
JULIUS GIKUNDA ATHILI....................................................................RESPONDENT
(An Appeal From the Judgment and Decree of the Learned Chief Magistrate Mr. A. O. Muchelule Dated and Delivered on the 25th Day of April, 2002 in Meru CMCC No.401 of 1994)
J U D G M E N T
The appellant in his Memorandum of Appeal dated 24th May, 2002 had the following grounds:
The Learned trial magistrate erred in law in finding in favour of the Respondent when no particulars of trust were pleaded in his plaint.
The learned trial magistrate erred in law to find that the doctrine of TRUST did not apply in the circumstance of this case.
The learned trial magistrate erred in law in failing to appreciate the 1st Appellant's unfettered right to deal with his land parcel No. ABOGETA/U-CHURE/387 as he desired and in particular to transfer the same to his daughter, the 2nd Appellant..
The learned trial magistrate's judgment is against the weight of evidence on record.
On 26. 6.2014, advocates representing the parties told the Court that they had come up with a consent which settles this matter. The consent was signed by the firm of Kiautha Arithi & Co. for the appellants and the firm of Munga Kibanga & Co. for the respondents. The consent says:
“By consent of the parties and their respective advocates:-
(a) That one acre of L. R. No. ABOGETA/U-CHURE/387 be transferred to the respondent by the 2nd Appellant.
(b) That the said one acre to encompass the Respondent's developments on the said land.
(c) That the reminder of LR. NO.ABOGETA/ U-CHURE/387 to remain in the name of the 2nd Appellant.
(d) That the appellants to cater for the sub-division fees and costs while the Respondent to cater for the fees required for the registration of a new title in his name.
(e) That this matter being a family dispute each party to bear own costs.
(f) That there being no dispute existing between the family, all parties to co-exist peacefully.”
The terms of this consent are adopted as an order of this Court. This appeal is marked settled and may not in future be resurrected by the parties involved.
It is so ordered.
Delivered in Open Court at Meru this 26th day of June, 2014 in the presence of:
Cc Lilian/Daniel
Otieno h/b Kibanga for Respondent
Miss Mutinda h/b Arithi for Appellant
P. M. NJOROGE
JUDGE