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ELCPartially AllowedE.L.C. Case No. 104 of 2017 (formerly Embu HCCC No. 81 of 2012)· [2018] KEELC 1848 (KLR)

James Karano Christopher & another v Christopher Njagi Karano & 4 others [2018] KEELC 1848 (KLR)

Environment and Land Court of Kenya at Embu
27 September 2018
3,066 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled a registered title owner actually held family land in trust, dismissing eviction and protecting the family's shares.

What this practically means

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Executive summary

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The Environment and Land Court at Embu (Angima J) consolidated two suits concerning parcel Mutira/Kathare/221: an eviction and caution-removal suit filed in 2002 by the 1st Plaintiff, the registered proprietor and grandson of the original owner, and a 2003 claim by the 2nd Plaintiff, a purchaser of one acre who could not obtain a transfer because of a caution lodged by the 1st Defendant. The Defendants counterclaimed, alleging that the 1st Plaintiff was registered in 1967 as a minor at the direction of the 1st Defendant to hold the land in trust for the family, each occupying and developing their shares. The court framed eight issues and held, on a balance of probabilities, that the 1st Plaintiff held the land in trust for his family: he was a minor at acquisition; his grandfather would illogically have disinherited his son and wife; and the Defendants had lived, built and farmed on the land for decades without objection. Applying Gathiba v Gathiba, the court held that a trust under the Registered Land Act need not be noted on the register. The Defendants were therefore not licencees, and the 1st Defendant's caution was reasonable and lawful. The 2nd Plaintiff, though a purchaser for value, conceded the Defendants' occupation and made no inquiries, so he was not a bona fide purchaser without notice. Both plaintiffs' claims were dismissed; the counterclaim was allowed in terms of the declaration of trust in equal shares of 1.52 acres each. Because the parties are family members, each party was ordered to bear its own costs.

Key legal issues

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01

Existence of a trust not endorsed on the title

Holding

The 1st Plaintiff was registered as trustee for his family notwithstanding that the title did not mention the trust

Reasoning

The 1st Plaintiff was a minor of about 9 years when registered in 1967 following succession to his grandfather. The Registered Land Act recognized trusts under section 28 proviso and section 126(1). Long occupation by the Defendants, development of homes and cultivation of crops for decades without objection, and the illogic of the grandfather disinheriting his son and wife, satisfied the court on a balance of probabilities that a family trust existed.

p. 3
02

Status of the Defendants' occupation

Holding

The Defendants were not licencees of the 1st Plaintiff

Reasoning

Having found that the 1st Plaintiff holds the land in trust for the family, the Defendants occupied in exercise of their beneficial shares, not under a licence. Their decades-long residence, home construction and cultivation without objection confirmed proprietary rather than licentious occupation.

p. 3
03

Lawfulness of the caution

Holding

The 1st Defendant's caution was reasonable and lawful as protection of a genuine claim pending adjudication

Reasoning

The Defendants had an assertable interest in the suit property founded on the trust. Lodging a caution to protect that interest pending formal resolution was a legitimate protective step, not an abuse, so the caution could not be ordered removed.

p. 4
04

Bona fide purchaser status of the 2nd Plaintiff

Holding

The 2nd Plaintiff was a purchaser for value but not without notice of the Defendants' interest

Reasoning

The 2nd Plaintiff conceded in cross-examination that the Defendants were in occupation when he bought the one acre and that he made no inquiry as to why. Constructive notice arises from occupation; failing to inquire amounted to shutting his eyes to the obvious, defeating the bona fide purchaser defence.

p. 4

Legal principles established

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  • A trust need not be noted on the land register; registration under the Registered Land Act does not relieve a proprietor of fiduciary obligations arising from customary law trusts
  • There is no legal requirement that all intended beneficiaries of a trust be alive at the commencement of the trust obligation
  • A purchaser who fails to inquire into obvious occupation of the land is not a bona fide purchaser without notice
  • Costs follow the event unless the court for good reason directs otherwise

Court orders

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  1. 1.The 1st Plaintiff's suit is dismissed
  2. 2.The 2nd Plaintiff's claim is dismissed
  3. 3.The Defendants' counterclaim is allowed in terms of prayer (b) thereof - a declaration that the 1st Plaintiff holds Mutira/Kathare/221 in trust for himself and the 2nd-5th Defendants in equal shares of 1.52 acres each
  4. 4.Each party shall bear its own costs

Authorities

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Legislation

  • Registered Land Act (repealed)section 28 (proviso); section 30; section 126(1)

Cases cited (2)

  • Gathiba Vs Gathiba
    NBI HCCC No. 1647 of 1984
  • Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land disputes); suit transferred from the High Court

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, "James Karano Christopher & another v Christopher Njagi Karano & 4 others [2018] KEELC 1848 (KLR)", Case Analysis (2018). E.L.C. Case No. 104 of 2017 (formerly Embu HCCC No. 81 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1848/eng@2018-09-27

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