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ELCPartially AllowedELC Suit (Meru), plaint dated 26th September 2013· [2018] KEELC 383 (KLR)

Beatrice Mukami Kirimi & 3 others v Benjamin Kirimi Ngaine & another [2018] KEELC 383 (KLR)

Environment and Land Court
7 December 2018
1,827 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Meru court ruled a father held family land in trust for his wife and children, cancelling a fraudulent transfer to a third party.

What this practically means

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Executive summary

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The plaintiffs, the wife and adult children of the 1st defendant, sued over parcel No. Nkuene/Nkumari/834 registered in the 1st defendant's name, alleging he held it in trust for them and that in breach of that trust he fraudulently lifted a caution and transferred the land to the 2nd defendant. They sought a declaration of trust and breach, nullity of the transfer, rectification of the register, a permanent injunction, costs and interest. The defendants denied the trust and put the plaintiffs to strict proof but called no evidence, counsel closing the defence case after several adjournments. The court found the 1st plaintiff's marriage to the 1st defendant proved, as his admission that the 2nd, 3rd and 4th plaintiffs were his children was unrebutted. Applying section 28(b) of the Land Registration Act, which recognises trusts including customary trusts as overriding interests, and following Rose Gacheri M'Arimi, the judge held that although ancestral character was not proved, the 1st defendant's conduct in allowing his adult children to openly occupy, build on, till and live on the land led irresistibly to the conclusion that he held it in trust for them. The transfer to the 2nd defendant was held to be a fraudulent breach of that trust and null and void ab initio. Judgment was entered for the plaintiffs on all substantive heads, with each party bearing their own costs to foster family unity.

Key legal issues

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01

Existence of a trust by the 1st defendant in favour of the plaintiffs

Holding

A trust was established on the basis of the 1st defendant's conduct in allowing his biological children, now of majority age, to openly occupy and develop the suit land

Reasoning

Though the plaintiffs did not prove the land was ancestral, the uncontroverted evidence showed the 2nd, 3rd and 4th plaintiffs were born and brought up on the land, built houses, married, raised families, tilled the land and kept animals there. Following section 28(b) of the Land Registration Act recognising trusts as overriding interests, and the reasoning in Rose Gacheri M'Arimi, the court drew the logical conclusion that the registered owner held the property in trust for his children.

02

Fraudulent transfer of the suit land to the 2nd defendant

Holding

The removal of the caution and transfer to the 2nd defendant were found to be in breach of the trust and null and void ab initio

Reasoning

The court found the 1st defendant breached his trust by fraudulently removing the caution registered by the 1st plaintiff and transferring the suit land to the 2nd defendant without the plaintiffs' consent. The defence offered no evidence to controvert the plaintiffs' testimony, so the claim was proved to the required standard.

p. 3
03

Effect of the defence failing to adduce evidence

Holding

The plaintiffs' uncontroverted evidence was taken as established

Reasoning

The defendants denied the claim and put the plaintiffs to strict proof but did not offer any evidence despite being given several opportunities, with defence counsel closing the defence case. The court therefore treated the sworn testimony of the plaintiffs, including the marriage of the 1st plaintiff to the 1st defendant, as admitted and unchallenged.

p. 2

Legal principles established

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  • Trusts, including customary trusts, are overriding interests in registered land under section 28(b) of the Land Registration Act
  • Where a registered proprietor-parent allows a child of majority age to openly occupy, build on, marry on and till land, the court may conclude the parent holds part of that land in trust for the child

Court orders

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  1. 1.A declaration that the 1st defendant held the suit land parcel no. NKUENE/NKUMARI/834 in trust for the plaintiffs and that the 1st defendant is in breach of the trust and the transfer to the 2nd defendant is null and void ab initio
  2. 2.An order directing the land Registrar to amend the land register by cancelling the name of the 2nd defendant as owner and substituting it with the plaintiff's names to hold jointly with the 1st defendant
  3. 3.A permanent injunction restraining the defendants from interfering with the plaintiffs' beneficial and registered ownership of parcel no. NKUENE/NKUMARI/834
  4. 4.Each party to bear his own costs of the suit

Authorities

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Legislation

  • Land Registration Actsection 28(b)

Cases cited (4)

  • Rose Gacheri M'Arimi vs Gedion M'Ikunyua Arimi
    (2017) eKLR
  • Mbui Mukangu vs Gerald Mutwiri Mbui
    (2004) eKLR
  • Silas Mburung'a Mathiu & another vs Mathiu Mugane
    ELC no. 45 of 2007 (Meru) (unreported)
  • Stella Mokeira Matara vs Thaddeus Moses Mangenya
    CA No. 63 of 2014 (Kisumu) (unreported)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (plaint seeking trust declaration, rectification and injunction)

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, "Beatrice Mukami Kirimi & 3 others v Benjamin Kirimi Ngaine & another [2018] KEELC 383 (KLR)", Case Analysis (2018). ELC Suit (Meru), plaint dated 26th September 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/383/eng@2018-12-07

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