Gikonyo & another v Kamau (Environment & Land Case E26 of 2021) [2024] KEELC 4277 (KLR) (22 May 2024) (Judgment)

Summary at a glance

Facts

The appellants are children of Waithera Damaris, the sister of the deceased John Kamau Gikonyo. The appellants' mother used the suit property for residential purposes, and the appellants continued using it after their mother's death. The respondent, the deceased's second wife, demanded the land after obtaining the grant of letters of administration and confirmation of grant.

Issues

• Whether the learned magistrate erred in fact and law by not considering the counter claim.
• Whether the learned magistrate erred in law and fact in failing to consider the issue as to the existence of trust.
• Whether the learned magistrate erred in law by finding that she had no reason to interfere with the respondent's rights as found in the succession cause.

Reasoning

The court found that the counter claim was properly before the learned magistrate despite the lack of a verifying affidavit. The court also found that the learned magistrate did not err in law by failing to find the existence of an implied trust, as the Land Registration Act does not relieve a proprietor of liabilities, rights, and interests unless the contrary is expressed in the register.

Outcome

The appeal is dismissed.

Authorities cited