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ELCPartially AllowedNot stated in the judgment· [2016] KEELC 43 (KLR)

Jane Kagio Kamara v Muriithi Kamara [2016] KEELC 43 (KLR)

Environment and Land Court
11 November 2016
BOB.N. Olao
571 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that land registered in one person's name can be held in trust for family members who prove the parties intended it that way.

What this practically means

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Executive summary

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The plaintiff, the second wife of the defendant, sued for a declaration that the defendant holds plot No. 145 Kamuiru, a village plot, in trust for her, together with rectification of the register to reflect the trust. She and her children had lived on the plot for over 40 years, while the defendant lived elsewhere in Machakos County with another wife. She alleged the plot had been given to the defendant by the clan to hold in trust for her and the family, and that he had begun threatening to evict her and sell the plot. The defendant was served with summons on 4th April 2016 but neither entered appearance nor filed a defence; interlocutory judgment was entered on 21st June 2016, and the suit proceeded for formal proof hearing on 25th October 2016. Relying on the uncontroverted evidence of the plaintiff, and applying the principle that the onus of proving a trust lies on the party asserting it and that a trust will not be implied except to give effect to the intentions of the parties (citing Mwangi Mbotho v Gachira Waitimu, 1986 KLR 171), the court found the plaintiff had proved her case on the required standard. Judgment was entered for the plaintiff: a declaration of trust and an order that the register be rectified to read that the defendant is registered as owner in trust for the plaintiff. The court made no order as to costs. Right of appeal was explained.

Key legal issues

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01

Whether the plaintiff proved the alleged trust over the suit plot

Holding

The court held that the plaintiff discharged the onus on uncontroverted evidence: the plot was given to the defendant by the clan to hold in trust for her and the family, and she remained in occupation with her children for decades while the defendant lived elsewhere with another wife.

Reasoning

The claim was based on trust, and the court reiterated the principle from MWANGI MBOTHO VS GACHIRA WAITIMU that a trust will not be implied except to give effect to the parties' intentions. The onus lay on the plaintiff. With no appearance or defence filed, the plaintiff's evidence was uncontroverted: the clan gave the plot to the defendant to hold in trust, and the plaintiff and her children had occupied it for over 40 years. The court was satisfied the case was proved on the required standard.

p. 1

Legal principles established

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  • The burden of proving a trust rests on the party asserting it, and a trust will not be implied except to give effect to the intentions of the parties.

Court orders

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  1. 1.A declaration that the defendant holds plot No. 145 KAMUIRU in trust for the plaintiff
  2. 2.An order that the register be rectified to read that the defendant is registered as owner thereof in trust for the plaintiff
  3. 3.No order as to costs

Authorities

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Cases cited (1)

  • MWANGI MBOTHO VS GACHIRA WAITIMU
    1986 K.L.R 171
Jurisdiction invoked
Original civil jurisdiction over a claim for a declaration of trust and rectification of the land register; no specific constitutional or statutory provision is cited in the judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Jane Kagio Kamara v Muriithi Kamara [2016] KEELC 43 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/43/eng@2016-11-25

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