[2008] KEHC 3635 (KLR)
The court found that the appellant, though nominated as successor to the rice holding licence by his deceased mother, held the land not absolutely but in trust for the other family members, in accordance with Kikuyu customary law. The trial magistrate's reliance on customary law was correct, as there was no evidence...
Source-derived case information.
- Citation
- [2008] KEHC 3635 (KLR)
- Parties
- Appellant: John Wambugu Kihara; Respondent: Esther Njeri Kiragu; Respondent: Zakayo Kiarie Kiragu; Respondent: Geofrey Wanjohi Kiragu
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 12 of 2004
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Trusts in Land, Succession of Licence, Customary Law Rights, Injunctions, Irrigation Board Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Wambugu Kihara
Appellant
Esther Njeri Kiragu
Respondent
Zakayo Kiarie Kiragu
Respondent
Geofrey Wanjohi Kiragu
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant holds Rice Holding No. 3200 absolutely or in trust for the respondents under Kikuyu customary law.
- 2 Whether the trial magistrate erred in finding that the appellant was a trustee for the respondents.
- 3 Whether the appellant was entitled to a permanent injunction against the respondents.
Ratio Decidendi
The court found that the appellant, though nominated as successor to the rice holding licence by his deceased mother, held the land not absolutely but in trust for the other family members, in accordance with Kikuyu customary law. The trial magistrate's reliance on customary law was correct, as there was no evidence that the mother intended to exclude her other children. The appellant's claim for exclusive ownership and a permanent injunction was therefore without merit. The trial court's judgment was based on sound evidence and proper application of the law, and there was no basis for appellate interference.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Civil Appeal 12 of 2004
JOHN WAMBUGU KIHARA…………………....…………….APPELLANT
VERSUS
ESTHER NJERI KIRAGU…………………………….1ST RESPONDENT
ZAKAYO KIARIE KIRAGU……………………...……2ND RESPONDENT
GEOFREY WANJOHI KIRAGU……………………..3RD RESPONDENT
JUDGMENT
The appeal arises out of Judgment of the lower court Hon. Nditika Senior Resident Magistrate in the SRM’s Court Civil Suit No. 53 of 2003 at Wanguru. The Appellant was the plaintiff in the lower court where he was claiming of Respondent from Rice Holding No.3200 and a permanent injunction from interfering with the said Rice Holding 3200.
After a full trial the learned Trial Magistrate dismissed the appellant’s suit with costs. The appellant has filed 10 grounds of appeal:-
Firstly it is to be noted that his land being a rice holding is under the management of the Irrigation Board under the Irrigation Act. It is the board which grants licences to tenants to work and grow the rice on the rice holding. It appears that the original licences on her death nominated the Appellant to succeed her as a licencee holder of the Rice Holding. The Respondent says that the Appellant was holding the Rice Holding in trust for all the Respondents who claim right under the original licence their deceased mother.
Therefore looking at the grounds of appeal as amended, the Trial Magistrate leaned on Kikuyu Customary Law and found that what the Respondents said was credible. The deceased mother could not have intended to throw the other members of the family out of land. There is no reason why she should have preferred to benefit the Appellant alone out of her other relatives. Therefore it was correct for the Trial Magistrate to find that the Appellant held the land (rice holding) for himself and in trust for the other members of the family. From the uncontroverted evidence the Appellant does not utilize the land but lets it out to other people.
On ground 2 A the Trial Magistrate exercised his discretion by setting aside the exparte Judgment no appeal was preferred. At this stage this court cannot interfere with that order.
On ground 3 thereof the issue was not the production of licence. The Respondents accepted that he was nominated as successor but that he was holding as trustee for them.
Regarding ground 4 A and 4B and 5A the Trial Magistrate held that the Appellant did not hold the land absolutely since the land was under Irrigation and therefore customary rights of defendant were to be protected. The record does not show that the issues of rotavating expenses were raised either in the plaint or in evidence by the plaintiff therefore ground 6 is without merit.
On ground 7 and 8 the Appellant obtained land through his mother who nominated him to succeed her as tenant after her death. This was family land from the mother’s side. There was no contrary evidence that the mother was not the original licencee.
After considering all the above, it is my finding that the Trial Magistrate correctly applied the law and the Judgment is based on sound evidence.
I find the appeal with no merit and the same is dismissed. No order as to costs, the parties being members of the same family.
Dated this 11th of February, 2008.
J. N. KHAMINWA
JUDGE
11/2/2008
Khaminwa – Judge
Njue – Clerk
Mr. Utuku HB for Kagio
Respondent in person.
Read in open court.
J. N. KHAMINWA
JUDGE