[2004] KEHC 981 (KLR)
The court found that the suit land belonged to the parties' father and was registered in the defendant's name as eldest son per Kikuyu custom. The plaintiff, although having lived on plot 291 since 1963, did so with the defendant's permission and thus did not meet the requirements for adverse possession. However, as...
Source-derived case information.
- Citation
- [2004] KEHC 981 (KLR)
- Parties
- Plaintiff: Monica Wambui Rua; Defendant: Stephen Nduati Rua
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 408 of 1988
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- Plaintiff partly succeeds; land to be registered jointly in both parties' names; no order as to costs.
- Judges
- PJ Ransley
- Legal Topics
- Adverse Possession, Customary Trusts, Inheritance Under Customary Law
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Monica Wambui Rua
Plaintiff
Stephen Nduati Rua
Defendant
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Was the suit land originally the property of the parties' father.
- 2 Is the plaintiff, as an unmarried woman, entitled to inherit under Kikuyu law and custom.
- 3 Has the plaintiff acquired title to the land by adverse possession for over 12 years.
Ratio Decidendi
The court found that the suit land belonged to the parties' father and was registered in the defendant's name as eldest son per Kikuyu custom. The plaintiff, although having lived on plot 291 since 1963, did so with the defendant's permission and thus did not meet the requirements for adverse possession. However, as an unmarried woman under Kikuyu law and custom, the plaintiff is entitled to inherit her father's land equally with her brother. The defendant is therefore deemed to hold the land in trust for the plaintiff, and the land should be registered in both their names as joint tenants in commission.
Court Disposition
Plaintiff partly succeeds; land to be registered jointly in both parties' names; no order as to costs.
Orders
- The defendant holds the suit land in trust for the plaintiff equally.
- The land is to be registered in the names of both plaintiff and defendant jointly as tenants in commission.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
HIGH COURT CIVIL APPEAL NO. 408 OF 1988
MONICA WAMBUI RUA …………………………………… PLAITNIFF VERSUS STEPHEN NDUATI RUA ……………………………… DEFENDANT
JUDGMENT
The Plaintiff by her further Amended Plaint claims the following relief
(a) A declaration that the Plaintiff has acquired title of two acres out of L.RNO.5/Kagumo-ini/431 and two acres out of L.R. Loc.5/Kagundu-ini/291 by way of adverse possession.
(b) Alternatively and without prejudice to (a) above, an order that the defendant was registered as a trustee in L.R.NO.Loc.5. Kagumoini/431 and Loc 5/Kagunduiini/291 to hold two acres each out of the said parcel of land as a trustee for the Plaintiff
(c) Costs of this suit
(d) Any other or further relief that this Honourable Court may deem fit and just to grant.
The issue in this case are as follows:-
1. Was the suit premises land belonging to the father of the parties.
2. If so was the Plaintiff a married woman not entitled to inherit the land under Kikuyu Law and Custom.
3. Has the Plaintiff been in advance possession of the suit premises for a period on excess of 12 years before the filing of the Plaint on the 3/2/1998.
4. If not is the Defendant a trustee for the Plaintiff of a half shore on the suit premises.
Having heard the evidence I am satisfied that the Plaintiff is telling the truth when she says she is not married despite having 5 children. I do not accept the evidence of the Defendant nor his witness Samuel Njuguna Gathahwa that she was married to one Ndungu Gahambi. If she was there is no explanation as to why she has lived alone since 1963 on the piece of land known as plot 291 which she has cultivated on since that time.
I find that the suit premises belonged to the father of the parties and that after his death the land was registered in the name of the Defendant being the eldest son, as is the custom. The Plaintiff has not been in advance possession on the land having lived on plot 291 with the permission of the Defendant. Until this case was filed. I suspect that the Plaintiff’s children have instigated her into filing this suit but that is not of any material importance.Under Kikuyu Law and Custom unmarried woman is entitled to inherit her father’s land with any other son equally.
In the result I find that the Defendant hold the said pieces of land in trust for the Plaintiff equally. I order that the land therefore be registered in their names jointly as tenants in commission.
I make no order as to costs, which will be paid by each party equally.
Dated and delivered at Nairobi this 4th day of May, 2004
P.J. RANSLEY JUDGE