Edward Kipkosgei Chemurbii & another v Charles K Kosgei & another [2014] KEELC 197 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 1st plaintiff holds the suit land in trust for the defendants
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.
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.
Whether a general trust exists between parents and children over parental land
No such general trust exists in law; parents are not required to consult children when dealing with their registered property.
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.
Whether the caution lodged by the 1st defendant should be removed
Yes. The caution was not placed to protect any sustainable claim and was ordered removed.
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.
Eviction and permanent injunction against the defendants
Granted, conditional on the defendants failing to live on the land as arranged by the 1st plaintiff.
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.
Claim for Kshs. 8,000/= damages for destruction of banana plantation
Dismissed for want of evidence.
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.
Legal principles established
#- 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
#- 1.A declaration that it has not been proved that the 1st plaintiff holds the suit land in trust for the defendants
- 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.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.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.If the 1st plaintiff allows the defendants to remain, they may only occupy and use the portions he permits, subject to his discretion
- 6.The defendants to bear the costs of the suit
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (7)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muchiri & another v Maina & another (Environment and Land Appeal 24 of 2019) [2022] KEELC 3057 (KLR)[2022] KEELC 3057 (KLR)23 May 2022
- Alfred Karasha & another v Simeon Joseph Ole Karasha & 3 others [2021] KEELC 2951 (KLR)[2021] KEELC 2951 (KLR)7 Jun 2021
- Joseph Kiptoo Bunei v Willington Koech [2021] KEELC 3039 (KLR)[2021] KEELC 3039 (KLR)3 Jun 2021
- Isaac Kibiego Kitur v Flora Yego & 2 others [2021] KEELC 3968 (KLR)[2021] KEELC 3968 (KLR)16 Mar 2021
- Nyaga Njai v Antony Munene Nyaga & 6 others [2020] KEELC 812 (KLR)[2020] KEELC 812 (KLR)2 Oct 2020followed
- M M G v J G & another [2018] KEELC 4441 (KLR)[2018] KEELC 4441 (KLR)23 Feb 2018
- Joseph Munene Muriithi & 2 Others v Edward Muriithi Gathungu & 2 Others [2017] KEELC 481 (KLR)[2017] KEELC 481 (KLR)10 Nov 2017distinguished
Cite this brief
#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.