[2007] KECA 210 (KLR)

IN THE COURT OF APPEAL OF KENYA AT NYERI

CIVIL APPEAL 355 OF 2002

WILSON GIKUNJU MUCIIMI ……………….……………………. APPELLANT

AND

GITHINJI MUCIIMI ……………………………………………… RESPONDENT

(Appeal from a judgment of the High Court of Kenya at Nyeri (Mitey, J) dated 8th October, 2002 in H.C.C. Appeal No. 21 of 1996)

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JUDGMENT OF THE COURT

This is an appeal from the decision of Mitey J. given on 8th October, 2002 by which the learned Judge set aside a judgment of the Resident Magistrate at Kerugoya and consequently dismissed the suit which the appellant had instituted against the respondent in that court.

The appellant, Wilson Gikunju Muciimi, is the younger brother of the respondent, Githinji Muciimi. They are both the sons of Muciimi Mbote who during demarcation of land in 1958 was possessed of several parcels of land.

The basis of the appellant’s claim was that their father during his lifetime gave each son a parcel of land. The appellant was given parcel number Kabare/Nyangati/537 while the respondent was given parcel number Kabare/Nyangati/485. Later, their father sub-divided another parcel of land which he owned into two portions. This was parcel number Kabare/Nyangati/467. The sub-division yielded parcels numbers Kabare/Nyangati/882 and Kabare/Nyangati/883. He allotted parcel number Kabare/Nyangati/882 to the house of the mother of the parties to this suit and the other parcel to the household of his other wife.

The appellant averred that in 1985, he requested the respondent to sub-divide parcel number Kabare/Nyangati/882 so that he could take his portion but the respondent refused. The appellant then complained to the clan elders, the chief and the local District Officer but in vain. Later, the respondent sold off a portion of Kabare/Nyangati/882 which was then given a new number as Kabare/Nyangati/1158. The remaining parcel became Kabare/Nyangati/1157, which is now the suit land.

On 7th March, 1995, the appellant commenced a suit at Kerugoya Resident Magistrate’s Court for a declaration that by reason of a trust in his favour, he was entitled to half share of land parcel number Kabare/Nyangati/1157 and to a consequential rectification of the register.

It was the respondent’s case both in the Resident Magistrate’s court and in the superior court that the suit land was an inter vivos gift from his father and that the appellant was not entitled to any portion of it. He denied that he held it on trust for the appellant.

The Resident Magistrate after a somewhat lengthy trial held:

“I do find that the plaintiff merits ½ share of the land parcel No. Kabare/Nyangati/1157 which he was left by Muciimi Mbote as a trustee for the 2 houses of the deceased. I do order therefore the defendant to transfer to the plaintiff ½ share of the said land parcel with costs.

Order accordingly.”

The respondent in his appeal before Mitey J. averred that there was no ground for the Resident Magistrate to conclude that a trust had been established in favour of the appellant in respect of the suit land.

Mr. Ombongi, for the appellant, submitted before us that the appellant was a minor in 1958 and that is why their father gave the suit land to the respondent to hold it on trust for the appellant. He averred that the learned Judge was wrong not to hold so and in vacating the orders of the Resident Magistrate.

Mr. Muchira, for the respondent, contended that the appellant had not provided any evidence to establish that he was a minor when their father gave the suit land to the appellant. Moreover, Mr. Muchira submitted, the appellant did not complain of being deprived of any portion of the suit land during the life time of their father who passed away in 1984. We think that this submission has merit and we would agree with it.

In our view, there cannot be any doubt that the judgment of the learned Judge is correct. There was no evidence whatsoever that any trust was proved to have been created or to have existed in favour of the appellant.

It is significant that the suit was being filed 30 years after the suit land had been transferred to the respondent by their father. Again, the appellant was in occupation of another parcel of land which, also, had been given to him by their father. Further, the appellant did not raise the complaint before his father died in 1984.

It follows that in our opinion, this appeal has no merit and we order that it be dismissed with costs.

Dated and delivered at Nyeri this 2nd day of November, 2007.

R.S.C. OMOLO

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JUDGE OF APPEAL

P.K. TUNOI

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JUDGE OF APPEAL

W.S. DEVERELL

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JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR