Beatrice Mukami Kirimi & 3 others v Benjamin Kirimi Ngaine & another [2018] KEELC 383 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Existence of a trust by the 1st defendant in favour of the plaintiffs
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
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.
Fraudulent transfer of the suit land to the 2nd defendant
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
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.
Effect of the defence failing to adduce evidence
The plaintiffs' uncontroverted evidence was taken as established
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.
Legal principles established
#- 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
#- 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.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.A permanent injunction restraining the defendants from interfering with the plaintiffs' beneficial and registered ownership of parcel no. NKUENE/NKUMARI/834
- 4.Each party to bear his own costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land (plaint seeking trust declaration, rectification and injunction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.