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ELCDismissedNot stated in the judgment· [2017] KEELC 22 (KLR)

Humphrey Peter Muraguri & 6 others v John Ngigi Macharia [2017] KEELC 22 (KLR)

Environment and Land Court
23 November 2017
MSMunyao Sila
7,508 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Five siblings lost their claim to family land because they had no proof their mother bought it; merely being family doesn't create ownership rights.

What this practically means

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Executive summary

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The six plaintiffs, siblings of the defendant, sued by plaint filed on 31 July 2012 claiming that the suit land, Nyandarua/Matindiri/27, registered in the defendant's name, was purchased in 1964 from the Settlement Fund Trustees by their late mother and registered in the defendant's name as first born to hold in trust for all the children. They sought a declaration of trust and an order for subdivision into specified shares. The defendant denied the trust, asserting he purchased the land himself, contributing Kshs. 4,000/= of his own earnings, with only a Kshs. 1,000/= gift from his mother, which he repaid by educating his siblings, and that he alone serviced the SFT loan from his salary. The court held that although a trust is an overriding interest under section 28(b) of the Land Registration Act and need not be noted on the register, a customary trust could not arise because the land was purchased from the SFT and never held under customary tenure. On the evidence, the plaintiffs produced no documentary or eyewitness proof that the mother financed the purchase; their case rested on assumption. The defendant, in employment in 1964, plausibly raised the deposit himself, and uncontroverted documents showed the loan was paid through a check-off from his salary. The mother's lack of residence on or attachment to the land further negated ownership. A gift does not create a trust, and the sibling or first-born relationship alone raises no presumption of trust. The plaintiffs failed to prove their case on a balance of probabilities. The suit was dismissed with costs to the defendant.

Key legal issues

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01

Whether a customary trust can arise over land purchased from the Settlement Fund Trustees

Holding

No customary trust arises; the land was purchased from the Government and never held under customary tenure or ancestral occupation

Reasoning

The court held customary trust presupposes land held under customary tenure and passed down through ancestral possession. The suit land was purchased from the SFT, the Government vehicle for buying out white settlers, and the litigants' ancestors never possessed it. The court distinguished Mukangu v Mbui, which concerned ancestral land, and found no customary law under which the land could be held.

p. 5
02

Whether the plaintiffs proved that the mother purchased the land

Holding

They did not; their case was based on assumption, with no documentary evidence and no eyewitness to the alleged payment

Reasoning

The burden lay on the plaintiffs under section 107 of the Evidence Act. No documents showed the money came from the mother, and none of the plaintiffs witnessed any gift of money. The defendant was in gainful employment in 1964 and could plausibly have raised Kshs. 4,000/= himself, with the Kshs. 1,000/= shortfall a gift from the mother. The loan was repaid from the defendant's salary via check-off, uncontroverted by documents.

p. 6
03

Whether unregistered trusts are claimable notwithstanding the indefeasibility of title

Holding

Yes; under sections 25 and 28 of the Land Registration Act, trusts including customary trusts are overriding interests and need not be noted on the register

Reasoning

The court examined section 25 on rights of proprietors and section 28 on overriding interests, holding that a proprietor's absolute holding is subject to interests not requiring noting, including trusts, and that registration does not absolve a proprietor of trustee duties. The absence of a trust entry on the register did not bar the plaintiffs' claim, so the suit was properly before the court.

p. 5

Legal principles established

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  • A trust, including a customary trust, is an overriding interest under section 28(b) of the Land Registration Act and need not be noted on the register for a claim founded on it to succeed
  • The relationship of siblings or being the first born, by itself, does not raise a presumption of trust; the trust must be proved by evidence
  • A gift by a parent to a child does not create a trust over what the child acquires or produces from the gift

Court orders

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  1. 1.The suit is dismissed
  2. 2.The defendant shall have the costs of the case

Authorities

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Legislation

  • Evidence ActSection 112
  • Evidence ActSection 107
  • Registered Land Act (repealed)Section 28(b)
  • Land Registration ActSections 25 and 28

Cases cited (4)

  • Kanyi vs Muthiora
    (1984) KLR 712
  • Mukangu v Mbui
    (2004) 2 KLR
  • Njenga Chogera vs Maria Wanjira Kimani & 2 Others
    Civil Appeal No. 322 of 2003 (unreported)
  • Joseph Githinji Gathiba vs Charles Kingori Gathiba
    (2001) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land; suit commenced by plaint

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, "Humphrey Peter Muraguri & 6 others v John Ngigi Macharia [2017] KEELC 22 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/22/eng@2017-11-23

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