[2008] KEHC 2296 (KLR)
The court found that the registration of land parcel Kagaari/Kigaa/1759 in the names of the plaintiffs, who were minors at the time, did not extinguish the beneficial interests of the other family members. The evidence showed that the land was family property and that the issue had been discussed by elders, who, as...
Source-derived case information.
- Citation
- [2008] KEHC 2296 (KLR)
- Parties
- Plaintiff: Njeru Ndwiga; Plaintiff: Manyanga Ndwiga; Defendant: Taratisia Marigu Ndwiga; Defendant: Basilio Njiru; Defendant: John Mugo
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 80 of 2006
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Land to be shared equally among all parties; no order as to costs.
- Legal Topics
- Customary Trust, Succession Before Cap 160, Land Registration, Family Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njeru Ndwiga
Plaintiff
Manyanga Ndwiga
Plaintiff
Taratisia Marigu Ndwiga
Defendant
Basilio Njiru
Defendant
John Mugo
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the registration of land parcel Kagaari/Kigaa/1759 in the names of the plaintiffs created a customary trust in favour of the defendants.
- 2 Whether all parties, being members of the same family, are entitled to share the land equally under customary law.
- 3 Whether the circumstances of registration and subsequent occupation confer beneficial interests to the defendants.
Ratio Decidendi
The court found that the registration of land parcel Kagaari/Kigaa/1759 in the names of the plaintiffs, who were minors at the time, did not extinguish the beneficial interests of the other family members. The evidence showed that the land was family property and that the issue had been discussed by elders, who, as experts in customary law, opined that all parties were entitled to share the land equally. The court held that a customary trust arose in favour of the defendants, entitling them to equal shares of the land. The court further ordered that each party should retain the portion already developed by themselves, reflecting the practical realities on the ground. The application of...
Court Disposition
Land to be shared equally among all parties; no order as to costs.
Orders
- Land parcel Kagaari/Kigaa/1759 shall be shared by all parties in equal portions, with each party retaining the portion already developed by themselves.
- No order as to costs.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Civil Case 80 of 2006
NJERU NDWIGA……………...…………………………1ST PLAINTIFF
MANYANGA NDWIGA……….…………………………2ND PLAINTIFF
VERSUS
TARATISIA MARIGU NDWIGA…………………….1ST DEFENDANT
BASILIO NJIRU...……………………………………2ND DEFENDANT
JOHN MUGO…………………………………………3RD DEFENDANT
JUDGMENT
The two plaintiffs are sons of their mother Taratisia Marigu Ndwiga (first Defendant). They plead that when they were very young the land parcel No. Kagaari/Kigaa/1759 was registered in the names of:-
1. Njeru son of Ndwiga
2. Manyanga son of Ndwiga in equal shares on 13/10/81.
They cannot tell the facts surrounding their registration as proprietors because they were minors. They have been given information by other persons. By the time the trial took place the two plaintiffs were adults, the first being 40 years. The plaintiffs have offered to give their mother and the brothers 2nd and 3rd Defendants some portion of land but they say Defendants have rejected the same. According the plaintiff witnesses, PW3 testified of how in 1973 the Runyenjes Court was seized of the issue of Succession of the Plaintiffs father’s land. The grandmother then told the court that the owners of land were dead but PW3 said there were survivors and requested for time to the check the matter.
PW3 was assistant chief. The home of the deceased was burnt down. PW3 went to the village where the deceased Ndwiga and he eventually took the two young plaintiffs children of Ndwiga the deceased. Then on a day they were required in court the first Defendant took the two plaintiffs to court. After hearing PW3 and first Defendant, the court ordered the land be registered in the name of the two plaintiffs. Then when they grew up there arose a dispute. It was discussed by elders and it was agreed that the plaintiff to get 1. 2 acres each and
Mother -0. 6. 2 acres
2nd Defendant - 0. 6. 2. acres
3rd Defendant - 0. 6.2 acres
On cross-examination PW3 said he could not let the mother to take land. She was young and she could sell the land or remarry.
The mother, first Defendant gave evidence she testified that her mother in-law burnt her matrimonial house and informed the court that the family of Ndwiga was deceased. When PW3 visited her parents house he met her mother. She identified the two children of deceased with 2nd Defendant. The 2nd defendant was not present at the home then. Defendant No. 2 gave evidence, one said he was twelve years then and their mother went and said the land be registered in the names of two defendants. The 3rd defendant said he was born on the land and could not leave because he has developed his portion.
DW4 gave evidence he is elder brother of deceased (Ndwiga.) When the brother died he had 3 children with first Defendant who was his wife. This witness confirmed that first Defendant was chased away from by her mother in law and her house burnt so she returned to her parental home. DW5 was another brother of deceased and he was of the view that the parties are not to vacate from the land as they were all entitled. I have considered peculiar facts of this case. It is the customary law that would be applicable since death occurred before the commencement of Succession Act Cap 160. The brothers of the deceased Ndwiga are of the view that the first Respondent and all the children being their two plaintiffs and two Defendants should all share the land equally. There is evidence that this issue has been discussed by elders who are experts in customary law. The elders were of the view that all should share the land. I therefore find that the circumstances surrounding the registration of the land in the names of the plaintiffs, gives rise to a customary trust in favour of the three defendants.
I therefore order that the land Parcel Kagaari/Kigaa/1759 shall be shared by all parties in equal portions but so that each party shall be in the portion already developed by himself.
In the circumstances no order shall be made because these are of same family and each has won some part of suit.
Dated this 20th May, 2008.
J. N. KHAMINWA
JUDGE
20/5/2008
Khaminwa – Judge
Njue – Clerk
Two Plaintiffs are present
Three Defendants are present
Read in open court.
J. N. KHAMINWA
JUDGE