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ELCPartially AllowedEldoret ELC Case No. 901 of 2013 (formerly Kitale HCC No. 47 of 2013)· [2014] KEELC 197 (KLR)

Edward Kipkosgei Chemurbii & another v Charles K Kosgei & another [2014] KEELC 197 (KLR)

Environment and Land Court
23 September 2014
3,941 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that registered landowners cannot be forced to share land with adult children unless a trust is clearly proven with evidence.

What this practically means

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Executive summary

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The 1st plaintiff, registered proprietor of land parcel Nandi/Kamobo/4258, sued his two sons seeking removal of a caution lodged by the 1st defendant, restraining orders, eviction, and damages of Kshs. 8,000/= from the 2nd defendant for destruction of a banana plantation. The 2nd plaintiff claimed 0.5 acres she had purchased from the 1st plaintiff and three of his sons. The defendants pleaded that their father held the ancestral land in trust for them and relied on an unsigned document (Defence Exhibit 1) allegedly recording an agreed distribution. The court held that under Sections 25 and 28 of the Land Registration Act, trusts (including customary trusts) are overriding interests, but a party pleading a customary trust must lead evidence of the custom; the defendants did not, so no trust was proved. There is no general law compelling a parent to consult children in dealing with registered land, and a living proprietor cannot be forced to distribute his property, applying Marigi v Muriuki and Jacinta Wanjiku Kamau. Defence Exhibit 1 was found to be a mere complaint, not a binding agreement. The court ordered removal of the caution, directed transfer of 0.5 acres to the 2nd plaintiff subject to Land Control Board consent, ordered the defendants to vacate within 60 days with a permanent injunction unless permitted by the 1st plaintiff to remain, but dismissed the damages claim for want of evidence, and awarded costs to the plaintiffs.

Key legal issues

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01

Whether the 1st plaintiff holds the suit land in trust for the defendants

Holding

No trust was proved. The defendants pleaded an undisclosed trust (ancestral land) but led no evidence of any custom or customary law creating it, and Defence Exhibit 1 was not an agreement binding the 1st plaintiff.

Reasoning

Section 25 of the Land Registration Act confers on the registered proprietor rights free from all other interests, subject to overriding interests under Section 28 including trusts and customary trusts. The defendants merely pleaded that the land was ancestral without leading evidence of the applicable customary law. The document produced did not bind the 1st plaintiff to distribute land, so no trust arose.

p. 4
02

Whether a general trust exists between parents and children over parental land

Holding

No such general trust exists in law; parents are not required to consult children when dealing with their registered property.

Reasoning

The court examined the Land Registration Act, the Land Act and the Children's Act and found no provision requiring parents to consult children over their land. Only spousal rights (Sections 28(a) and 93) are recognized. Any trust must be proved through evidence on a case-by-case basis. In the absence of a proven trust, the absolute proprietor's discretion prevails.

p. 5
03

Whether the caution lodged by the 1st defendant should be removed

Holding

Yes. The caution was not placed to protect any sustainable claim and was ordered removed.

Reasoning

Having found no trust or other overriding interest in favour of the defendants, the caution protected no sustainable claim. The 1st defendant lodged it to compel his father to distribute land according to the defendants' wishes, which the law does not sanction. The court ordered the Lands Registrar to remove it upon service of the order.

p. 6
04

Eviction and permanent injunction against the defendants

Holding

Granted, conditional on the defendants failing to live on the land as arranged by the 1st plaintiff.

Reasoning

As absolute proprietor without any proven overriding interest binding him, the 1st plaintiff has discretion over how his children occupy his land during his lifetime. If the defendants do not accept his arrangement, they must vacate. The court allowed eviction and a permanent injunction subject to the defendants living on the land as arranged by their father.

p. 6
05

Claim for Kshs. 8,000/= damages for destruction of banana plantation

Holding

Dismissed for want of evidence.

Reasoning

Apart from the 1st plaintiff's bare statement that the 2nd defendant damaged his crop, no other evidence was tabled. The 2nd defendant denied the destruction. The claim therefore failed to meet the balance of probabilities standard of proof and no damages could be awarded.

p. 6

Legal principles established

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  • Barring any clear evidence of a trust, there is no law which compels a proprietor to deal with his land subject to the whims and wishes of his children.
  • A claim based on customary trust must be proved by evidence of the custom or customary law said to create the trust; it cannot rest on a bare plea of ancestral land.
  • A living proprietor cannot be compelled against his will to distribute his property to his children; their rights can only accrue after his death.

Court orders

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  1. 1.A declaration that it has not been proved that the 1st plaintiff holds the suit land in trust for the defendants
  2. 2.The caution placed on the register of land parcel Nandi/Kamobo/4258 to be removed forthwith by the Lands Registrar upon service of the order
  3. 3.Subject to the consent of the Land Control Board and any other written law, 0.5 acres of land parcel Nandi/Kamobo/4258 to be transferred to the 2nd plaintiff with exclusive use and possession
  4. 4.The defendants to vacate the suit land within 60 days and be permanently restrained from being on the suit land unless allowed by the 1st plaintiff
  5. 5.If the 1st plaintiff allows the defendants to remain, they may only occupy and use the portions he permits, subject to his discretion
  6. 6.The defendants to bear the costs of the suit

Authorities

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Legislation

  • Land Registration ActAct No. 3 of 2012, Sections 25, 28, 93
  • Land ActAct No. 6 of 2012
  • Land Titles ActCAP 282 (repealed)
  • Registration of Titles ActCAP 281 (repealed)
  • Registered Land ActCAP 300 (repealed)
  • The Government Land ActCAP 280 (repealed)
  • Indian Transfer of Property Act1882
  • Children's Act(referred to generally)

Cases cited (2)

  • Marigi v Muriuki & 2 Others
    (2008) 1 KLR 1073
  • Jacinta Wanjiku Kamau v Isaac Kamau Mungai & Another
    Civil Appeal No. 59 of 2001 (2006) eKLR
Jurisdiction invoked
Original civil suit under the Land Registration Act, Act No. 3 of 2012 and the Land Act, Act No. 6 of 2012 (Environment and Land Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Edward Kipkosgei Chemurbii & another v Charles K Kosgei & another [2014] KEELC 197 (KLR)", Case Analysis (2014). Eldoret ELC Case No. 901 of 2013 (formerly Kitale HCC No. 47 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/197/eng@2014-09-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.