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ELCDismissedLand Case No. 74 of 2013· [2016] KEELC 1096 (KLR)

Wanyonyi Chekerie v Domiano Wanyonyi & 2 others [2016] KEELC 1096 (KLR)

Environment and Land Court
1 February 2016
EOE. Obaga
1,085 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 dismissed a father's bid to evict his sons, ruling that customary family trust rights protect children even when the parent is the registered owner.

What this practically means

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Executive summary

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The plaintiff, a father, sued his two sons and his grandson, seeking a declaration that he is the sole legal owner of West Pokot/Siyoi 'A'/5329 and an injunction restraining the defendants from interfering with the land. He alleged that the defendants had harassed him for five years, pursuing him before the District Officer and District Commissioner demanding land. The defendants testified that they have lived on the land since childhood, that their mother was buried there, and that an agreement reached before the District Officer that the plaintiff subdivide the land between his two wives was never implemented. The court found it uncontroverted that the plaintiff was the registered owner, but noted that the original parcel of 7.2 hectares had been subdivided, leaving him with only 2.54 hectares, without any disclosure of what became of the balance. The court found no evidence of harassment, holding that any agreements before administrators were mere family dispute-resolution attempts. It applied the Land Registration Act, 2012, which makes customary trusts overriding interests, holding that Esiroyo v Esiroyo is no longer good law on that point, and found unchallenged evidence that the plaintiff sought to evict the defendants from their only home and to disinherit them by transferring land to third parties. The suit was dismissed with costs to the defendants on 1 February 2016.

Key legal issues

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01

Whether customary trusts are overriding interests under the Land Registration Act, 2012

Holding

Yes - the defendants, being sons and grandson of the registered owner, enjoy a customary trust over the suit land as an overriding interest not requiring notation on the register

Reasoning

The court held that section of the Land Registration Act expressly recognises customary trusts as overriding interests. It found the older decision in Esiroyo v Esiroyo, which held customary trusts were not overriding interests, no longer good law following the enactment of the 2012 statute. The defendants' occupation and family relationship were not challenged in evidence.

p. 2
02

Whether the plaintiff proved harassment by the defendants

Holding

No - no evidence was adduced to prove the alleged harassment

Reasoning

The plaintiff alleged that the defendants were harassing him by demanding land, taking him before the District Officer and District Commissioner. The court found no evidence to support the allegations, and held that even if agreements before the administrators existed, they were family dispute-resolution attempts, not harassment.

p. 2
03

Whether the plaintiff was entitled to the equitable remedy of injunction

Holding

No - the plaintiff's conduct in secretly transferring most of the land disentitled him to equitable relief

Reasoning

The plaintiff originally owned 7.2 hectares but the remaining registered parcel was only 2.54 hectares, and he never disclosed whether he sold or transferred the remainder. The court found this conduct amounted to an attempt to disinherit the defendants and made him undeserving of an injunction.

p. 2

Legal principles established

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  • Under the Land Registration Act, 2012, customary trusts and other trusts are overriding interests which need not be noted in the register, and the holding in Esiroyo v Esiroyo that customary trusts are not overriding interests is no longer good law

Court orders

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  1. 1.The plaintiff's suit is dismissed with costs to the defendants
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over disputes concerning land ownership and injunctions

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, "Wanyonyi Chekerie v Domiano Wanyonyi & 2 others [2016] KEELC 1096 (KLR)", Case Analysis (2016). Land Case No. 74 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1096/eng@2016-02-01

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