[2019] KEELC 2394 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KERGUOYA

ELC CASE NO. 66 OF 2017

MICHAEL MUNENE KUBURIA...........................................1ST PLAINTIFF

JOHN MWAI KITHIGA..........................................................2ND PLAINTIFF

VERSUS

VIRGINIAH MUTHONI GACHUBI...................................1ST DEFENDANT

SOPHIA MUTHONI MIGWI..............................................2ND DEFENDANT

JUDGMENT

BACKGROUND

The plaintiffs commenced this suit by a plaint dated 3rd May 2017 seeking the following orders:

(a) A declaration that the deceased Samuel Gichubi Kuburia held land parcel No. INOI/KIAGA/63 in trust for himself, MWAI KUBURIA and ARTHUR RUGANO KUBURIA.

(b) A declaration of the trust and transfer of 2/3 of land parcel No. INOI/KIAGA/63 to the plaintiffs.

(c) An order for the defendant to give vacant possession of 2/3 of land parcel No. INOI/KIAGA/63 to the plaintiffs.

(d) Costs of the suit.

On first August 2017, the defendants filed a joint statement of defence and counter-claim dated 31st July 2017.

PLAINTIFFS CASE

The plaintiffs testified in this case and called one other witness namely Stephen Muriudu Chomba. The two plaintiffs contend that the late Samuel Gichubi Kuburia, the registered proprietor of the suit land Reference No. INOI/KIAGA/63 was registered to hold in trust for himself and their fathers ARTHUR RUGANO KUBURIA and MWAI KUBURIA respectively. According to the plaintiffs, MWAI KUBURIA and ARTHUR RUGANO KUBURIA were brothers to SAMUEL GACHUBI KUBURIA and that the 1st defendant was the wife to the late SAMUEL GICHUBI KUBURIA while the 2nd defendant was the daughter to the late SAMUEL GICHUBI KUBURIA. They also contend that the 1st and 2nd defendants are the legal representatives of the Estate of SAMUEL GICHUBI KUBURIA. They stated that during land demarcation and Adjudication, the deceased SAMUEL GICHUBI KUBURIA was given land parcel No. INOI/KIAGA/63 by the clan measuring approximately 6. 6 acres to hold in trust for himself and his brothers MWAI KUBURIA and ARTHUR RUGANO KUBURIA. The plaintiffs further contend that their fathers MWAI KUBURIA and ARTHUR RUGANO KUBURIA assisted the deceased develop the suit land by planting coffee and trees. They brought up their children on the suit land and even built houses thereon. They also stated that even their father to MWAI KUBURIA, ARTHUR RUGANO KUBURIA and SAMUEL GICHUBI KUBURIA was buried on the suit land No. INOI/KIAGA/63 as well as RUGANO KUBURIA’s first wife NJOKI RUGANO was also buried on the suit land together with her three (3) children. According to the plaintiffs, the defendants without reasonable cause have refused to sub-divide and transfer land parcel No. INOI/KIAGA/63 to them. The plaintiffs also stated that there has been previous proceedings over the same subject matter in Civil Appeal No. 122 of 208 and Succession Cause No. 78 of 2001 in which letters of administration were awarded to Virginia Muthoni and Sofia Muthoni.

DEFENDANTS CASE

The defendants stated that suit land INOI/KIAGA/63 belongs to the late SAMUEL GICHUBI KUBURIA (deceased) as the sole and absolute proprietor having been given by the Unjiru Clan who also gave his brothers Rugano and Mwai their parcels of land in Mwea. They stated that before the late SAMUEL GICHUBI KUBURIA passed on, he had expressed his wish that the suit property would be passed on to his two (2) wives and children. The defendants also contend that during the life time of Arthur Rugano Kuburia who are brothers with Samuel Gichubi Kuburia, he never raised any complain to the defendants or any member of Unjiru Clan that suit property was being held in trust by the registered proprietor, Samuel Gichubi Kuburia (deceased). The defendant also stated that the brothers of the late Samuel Gichubi Kuburia never helped him in planting trees or developing the suit land in any way. They stated that the case on the suit land started over 15 years ago after the death of Samuel Gichubi Kuburia. The nephews John Mwai Kithiga and Michael Munene Kuburia instituted it in the Magistrate’s Court (Kerugoya) which later went to Embu and later to Nyeri Court of Appeal. They said that the Court of Appeal in Nyeri ruled that the land belongs to the late Gichubi’s next of kin (the wives). They contend that the 1st plaintiff continues to occupy a small portion of the suit land wrongfully which they sought an order to have him evicted. They stated that the 1st plaintiff had occupied the small portion as a licencee and that an order do issue evicting him and dismissing this suit with costs.

PLAINTIFFS SUBMISSIONS

The plaintiffs through the firm of Magee Wa Magee & Co. Advocates submitted that the plaintiffs have proved that Samuel Gichubi Kuburia was given land parcel No. INOI/KIAGA/63 through his Unjiru Clan to hold in trust for himself and his 2 brothers. He submitted that there is credible evidence that their father was deceased when the clan allocated land and that he was therefore allocated land in trust for his family. That, he submitted was the practice as confirmed by PW3 who was involved in the process of Land Adjudication and demarcation. The learned counsel cited numerous authorities in support of the plaintiff’s claim.

DEFENDANTS SUBMISSIONS

The defendants through the firm of Kinuthia Wandaka & Co. Advocates submitted that the plaintiffs had earlier filed a case against Juliana Wanjiku Baragu who had lived closely and in a friendly atmosphere with the family of Samuel Gichubi Kuburia. The plaintiffs were claiming that the suit land was trust land. After hearing the case, the Court ruled in favour of the said Juliana Wanjiku Baragu. The case went to the Court of Appeal being C.A No. 184 of 2008 (Nyeri). The defendants further submitted that the plaintiffs father who were brothers to the late Samuel Gichubi Kuburia (deceased) were given their lands by the Unjiru Clan in Mwea where they moved and settled with their families. The defendants also submitted that the plaintiffs fathers the late Rugano and Mwai were buried in their land at Mwea and not at the subject matter of this suit. From the evidence, the defendants submitted that there was no trust existing in the suit land and no evidence to proof its existence. The learned counsel also cited numerous authorities.

ANALYSIS AND DECISION

I have considered the evidence adduced by both the plaintiffs and the defendants together with their witnesses. I have also looked at the list of documents and the applicable law. The basis of the plaintiffs claim is the law of trust. In Karanja Wanjihia Vs Duncan Wanjihia & 4 others (2004) e K.L.R, the Court stated of trust as follows:

“Trust is an issue both of fact and law. It is a serious issue and needs to be demonstrated through proper evidence and verification of evidence”.

In the case of Mbothu & others Vs Waitimu & 11 others, (1980), K.L.R 171 cited in the Estate of the late Jonathan Kinyua Waititu (deceased) (2017) e K.L.R Succession Cause No. 488 of 2010, the Court of Appeal held:

“The law never implies, the Court never presumes a trust but in case of absolute necessity. The Courts will not imply a trust save in order to give effect to the intention of the parties. The intention of the parties to create a trust must be clearly determined before a trust will be implied.

Since the plaintiff’s claim was based on trust, the law places the onus on her to prove the existence of such trust…… It is however clear from the evidence herein that the plaintiff has neither pleaded nor proved any of the particulars as to how the trust subject matter of this claim arose with respect to the suit land. There is really no evidence upon which this Court can make a finding that the defendant holds the suit land in trust for him”.

The plaintiffs in this case are nephews to Samuel Gichubi Kuburia (deceased) who is the registered proprietor of the suit land registration number INOI/KIAGA/63. The two had prior to instituting this suit filed another case in Embu being Succession Cause No. 321 of 1994 which went to the Court of Appeal in Nyeri as C.A No. 184 of 2008. In that case, one Juliana Wanjiku Baragu had applied for the grant of letters of administration in respect of the Estate of the late Munene Gachuhi. The grant of letters was granted to the said Juliana Wanjiku Baragu and later confirmed with the result that the sole property of the deceased being L.R No. INOI/KIAGA/62 vested in her. Both plaintiffs Michael Munene Kuburia and John Kithiga Mwai applied for the revocation of the said grant before the High Court in Embu. The High Court in Embu declined to revoke the grant of letters of administration issued to the said Juliana Wanjiku Baragu. Being aggrieved by the aforesaid ruling, the plaintiffs/appellants appealed to the Court of Appeal (Nyeri) who upon re-evaluation returned with the same conclusion as the learned Judge in Embu and dismissed the appeal with costs.

Flowing from this analysis, I find and hold that the plaintiffs have not proved the existence of a customary trust in the suit land that is capable of being implied by this Court. It is clear from the evidence adduced by the witnesses that the plaintiffs’ fathers who were brothers to Gichubi Kuburia (deceased) had been given land by Unjiru Clan in Mwea where they moved with their families where they were also buried. In the result, I find no trust existing in the suit land and this suit must therefore fail.

Consequently, I make the following orders:

1. The plaintiffs suit be and is hereby dismissed.

2. The defendants counter-claim is allowed.

3. The plaintiffs are given six (6) months to vacate from the suit land No. INOI/KIAGA/63 failing which they shall be evicted.

4. Since the plaintiffs and the defendants are close relatives, I order each party to bear their own costs.

READ, DELIVERED and SIGNED in open Court at Kerugoya this 28th day of June, 2019.

E.C. CHERONO

ELC JUDGE

28TH JUNE, 2019

In the presence of:

1. M/S Githaiga holding brief for Magee for Plaintiffs

2. Ms Nyangati holding brief for Wandaka for Defendants

3. Court clerk - Mbogo