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ELCDismissedELC No. 5 of 2018 (formerly High Court Case No. 30 of 2012; CMCC No. 117 of 2016)· [2018] KEELC 573 (KLR)

Madalina Wambui Marete & another v Julius Kigutu [2018] KEELC 573 (KLR)

Environment and Land Court
28 November 2018
LMLucy N. Mbugua
1,688 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed siblings' claim that their brother held family land in trust, because they could not prove it—the registered owner kept the land.

What this practically means

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Executive summary

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The plaintiffs, Madalina Wambui (widow of the defendant's deceased brother Cosmas Marete) and Joseph Muchinjia, sued the defendant, Julius Kirutu M'Twerandu, registered owner of parcel NYAKI/KITHOKA/685 (4 acres), seeking a declaration that he holds the land in trust for them and an order for transfer. They alleged their father, M'Tuerandu M'Anampiu, bought the land but registered it in the defendant's name as eldest son to hold in trust for his siblings. The defendant denied the trust, asserting he purchased the land himself in 1968 (title issued 22.5.1997) and allowed the plaintiffs to occupy as licensees. The suit had a chequered history, filed in the High Court in 2012, transferred to the Chief Magistrate's Court in 2016, and transferred back to the Environment and Land Court by consent in 2017. The sole issue was whether the defendant held the land in trust. Applying section 28 of the Land Registration Act, the court found the trust claim unproved: the green card showed the defendant as purchaser for Shs.1,000; the father, who died in 1992, never asserted any claim or lodged a caution on the land; the family identified with the father's land at Ruiri Rwarera; and PW3's testimony lacked credibility. The claim was dismissed with each party bearing their own costs, the court noting this was a family dispute.

Key legal issues

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Whether the defendant holds the suit land NYAKI/KITHOKA/685 in trust for his siblings (and the family of the 1st plaintiff's deceased husband)

Holding

No trust was established; the claim was dismissed

Reasoning

The green card showed the defendant purchased the land from Igweta Ikiare for Shs.1,000 with registration passing in 1974. The father, said to be the true purchaser, lived until 1992 but never asserted ownership or lodged a caution (the first caution was 7.10.2010, after his death). The father identified with land at Ruiri Rwarera used by all the children. PW3's credibility was wanting, as he could not state how many children M'Tuerandu had and contradicted himself on the caution.

p. 3

Legal principles established

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  • Under section 28 of the Land Registration Act, registered land is subject to overriding interests including trusts and customary trusts unless the contrary is expressed in the register
  • A claim of trust, including customary/family trust, must be proved by the party asserting it, and the register may be rebutted by evidence such as failure to caution the land and conduct inconsistent with a trust

Court orders

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  1. 1.The plaintiffs' claim is dismissed
  2. 2.Each party is to bear their own costs of the suit

Authorities

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Legislation

  • Land Registration ActSection 28
Jurisdiction invoked
Jurisdiction of the Environment and Land Court over disputes relating to land registered under the Land Registration Act (suit transferred from the Chief Magistrate's Court and the High Court by consent)

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, "Madalina Wambui Marete & another v Julius Kigutu [2018] KEELC 573 (KLR)", Case Analysis (2018). ELC No. 5 of 2018 (formerly High Court Case No. 30 of 2012; CMCC No. 117 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/573/eng@2018-11-28

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