Kiriamburi Tiribi Mwaniki & 2 others v Kithinji Tiribi [2018] KEELC 321 (KLR)
The bottom line
#A Kenyan court ruled that land registered in one sibling's name was actually held in trust for his brothers, who proved their family contributions and long occupation.
What this practically means
#Executive summary
#Key legal issues
#Whether a customary/family trust existed in favour of the Plaintiffs notwithstanding registration of the Defendant as absolute proprietor
Yes. The court found the Defendant was registered as proprietor on his own behalf and in trust for the Plaintiffs, the trust not requiring notation on the register.
The court relied on four strands of evidence: the entire family's en masse relocation to the suit property; the 1st Plaintiff's and mother's contribution to the purchase price through funds sent via the Defendant; the siblings' long occupation and development of the land without objection, including a burial of the parties' mother; and the 2nd Plaintiff's attendance at the Land Control Board. It held trusts are overriding interests under section 30 of the repealed Registered Land Act and section 28 of the Land Registration Act, 2012, so absence of register notation is immaterial.
Standard of proof for a claim of trust
The burden lay on the Plaintiffs, and a mere allegation is insufficient; evidence must demonstrate the nature of the holding and intention of the parties.
Citing the Supreme Court in Isack M'inanga Kiebia v Isaaya Therui M'Lintari & Another, the court held that not every claim of right to land qualifies as a customary trust; what is essential is the nature of the holding and the intention of the parties, and each case turns on its own merits and quality of evidence. On that standard, the court found sufficient material to infer a relationship of trust.
Costs
Although costs follow the event under section 27 of the Civil Procedure Act, the court directed each party to bear his own costs given the sibling relationship.
The court cited the general rule in Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd that a successful litigant should normally be awarded costs unless for good reason the court directs otherwise. Since all parties are siblings, the court found it appropriate to depart from the ordinary rule and order each party to bear his own costs.
Legal principles established
#- A trust need not be noted on the register; trusts, including customary trusts, are overriding interests on registered land under both the repealed Registered Land Act and the Land Registration Act, 2012
- Registration of a person as proprietor of land does not automatically exclude obligations as a trustee; a claimant may still plead and prove a trust, but must tender evidence to establish it
Court orders
#- 1.The Plaintiffs' suit allowed in terms of prayers (a), (b), (c) and (d) of the plaint dated 17th January 2007
- 2.Each party to bear his own costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute concerning title, trust and sub-division of land parcel Ngandori/Kiriari/897 and resultant parcels Ngandori/Kiriari/4100-4104
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiriamburi Tiribi Mwaniki & 2 others v Kithinji Tiribi [2018] KEELC 321 (KLR)", Case Analysis (2018). E.L.C. Case No. 28 of 2014 (Formerly Kerugoya ELC No. 441 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/321/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.