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ELCPartially AllowedNot stated in the judgment ( plaint over land parcel No. MUTIRA/KATHARE/579)· [2017] KEELC 562 (KLR)

Eunice Wakuthii Muchina & another v Florah Wambui Muchina [2017] KEELC 562 (KLR)

Environment and Land Court
8 December 2017
BOB.N. Olao
955 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kerugoya ruled that a daughter's name on a title deed does not override a father's instruction to hold land in trust for his daughters.

What this practically means

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Executive summary

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The plaintiffs, daughters of the defendant, sued their mother over land parcel No. MUTIRA/KATHARE/579, a subdivision of the original parcel MUTIRA/KATHARE/80 belonging to their late father, Muchina Mbuko. They sought a declaration that the defendant holds one acre of the suit land in trust for them, plus costs. The defendant was served with the plaint and summons on 25th October 2016 but neither entered appearance nor filed a defence, so the suit proceeded formally on 21st November 2017 on the uncontroverted evidence of the 1st plaintiff, who testified for her sister. She explained that the deceased sub-divided the original parcel on 18th November 1998 among his four sons and the defendant, with the suit land registered in the defendant's name to hold in trust for the daughters. The court held that registration does not extinguish rights under a trust, citing the repealed Registered Land Act (s.28) and the Land Registration Act 2012 (s.25), and the line of authority including M'Kangu v Mbui, Kanyi v Muthiora and Mumo v Makau. Although the law does not presume a trust absent clear intention, no presumption was needed given the direct uncontroverted evidence. The court noted Article 27 of the Constitution on gender equality. Judgment was entered for the plaintiffs: a declaration that the defendant holds one acre of the suit land in trust for them, with no order as to costs.

Key legal issues

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01

Whether a trust in favour of the plaintiffs was established over land registered in the defendant's name

Holding

Yes - on the uncontroverted evidence of the 1st plaintiff, the defendant holds the suit land in trust for the plaintiffs

Reasoning

The defendant was duly served but neither entered appearance nor filed a defence, leaving the plaintiffs' evidence uncontroverted. The 1st plaintiff's oral and written evidence showed the deceased father registered the land in the defendant's name expressly to hold in trust for the daughters. Registration does not defeat trust rights, and no presumption was needed since the intention to create the trust was shown by direct evidence.

p. 2

Legal principles established

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  • Registration of land in the name of one party does not extinguish the rights of other parties entitled to it under a trust
  • The law will not presume a trust save where the intention of the parties to create it is clearly shown

Court orders

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  1. 1.A declaration that the defendant holds 1 (one) acre out of land parcel No. MUTIRA/KATHARE/579 in trust for the plaintiffs
  2. 2.No order as to costs

Authorities

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Legislation

  • Registered Land Act (repealed)Section 28
  • Land Registration Act 2012Section 25
  • Constitution of Kenya 2010Article 27

Cases cited (4)

  • MUKANGU VS MBUI
    2004 2 K.L.R 256
  • KANYI VS MUTHIORA
    1984 K.L.R 712
  • MUMO VS MAKAU
    2004 1 K.L.R 13
  • MBOTHU & OTHERS VS WAITIMU & OTHERS
    1986 K.L.R 171
Jurisdiction invoked
Original civil suit in the Environment and Land Court over a trust in registered land (no specific provision stated; court applied Section 28 of the repealed Registered Land Act and Section 25 of the Land Registration Act 2012)

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, "Eunice Wakuthii Muchina & another v Florah Wambui Muchina [2017] KEELC 562 (KLR)", Case Analysis (2017). Not stated in the judgment ( plaint over land parcel No. MUTIRA/KATHARE/579). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/562/eng@2017-12-08

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