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ELCDismissedNot stated in judgment· [2018] KEELC 2655 (KLR)

Antony Kimathi Gitari & another v James Gitari M’Ikiara & 2 others [2018] KEELC 2655 (KLR)

Environment and Land Court
28 June 2018
JKJ G Kemei
1,522 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Plaintiffs, sons of the 1st Defendant, sued claiming that their father held L.R NTIRIMITI SETTLEMENT SCHEME/190 in trust for them and that his transfer of the land to the 2nd and 3rd Defendants (the 1st Defendant's brothers) was in breach of that trust. They sought a declaration of trust, a finding that the transfer was fraudulent and malicious, and rectification of the register by cancelling the 2nd and 3rd Defendants' registration and re-registering the 1st Defendant to hold the land in trust for himself, the Plaintiffs and their mother. The Defendants denied paternity, denied any trust (the land having been purchased from the Settlement Fund Trustees rather than inherited), and counterclaimed for a permanent injunction restraining the Plaintiffs from interfering with the land. The court framed the key issue as whether the suit land was subject to a customary trust. Relying on sections 27 and 28 of the repealed Registered Lands Act and the corresponding provisions of the Land Registration Act, 2012, the court recognized customary trust as an overriding interest but held that it must be proved on a balance of probability. The land was not ancestral, was admitted by both sides not to be family land, and the Plaintiffs did not occupy it; no trust was therefore proved. Applying the Court of Appeal decision in Muriuki Marigi, the court held that even if the Plaintiffs were the 1st Defendant's children - which the birth certificates prima facie established and which he did not rebut - their rights were inchoate and would accrue only upon his death. The 2nd and 3rd Defendants were found to be lawfully registered owners. The Plaintiffs' suit was dismissed and the Defendants' counterclaim allowed with costs to the Defendants.

Key legal issues

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01

Whether the suit land is subject to a customary trust

Holding

No trust was proved; the land was bought from the Settlement Fund Trustees, was not ancestral, and both sides admitted it was not family land

Reasoning

The court examined the title, finding first registration in the name of Settlement Fund Trustees with the 1st Defendant registered in 1996. Both sides admitted the land was not ancestral. Customary trust ordinarily attaches to ancestral/family land; without evidence of such a trust the Plaintiffs' claim failed notwithstanding the statutory recognition of customary trust as an overriding interest under the repealed and current registration statutes.

p. 2
02

Whether the Plaintiffs, as alleged children of the 1st Defendant, had accrued rights over the land

Holding

Even if the Plaintiffs were the 1st Defendant's children, their rights were inchoate and would accrue only on his death; there was nothing to fault in his gifting the land to the 2nd and 3rd Defendants

Reasoning

Birth certificates were prima facie proof of paternity and the 1st Defendant produced no contrary evidence. Applying the Muriuki Marigi decision, children's rights over a father's estate are inchoate during his lifetime and cannot ground a claim to compel transfer. Since the land had already been lawfully transferred, no claim lay against the donees either.

p. 2
03

Whether the 2nd and 3rd Defendants were lawfully registered owners entitled to the injunction sought in the counterclaim

Holding

Yes; being lawfully registered under sections 27 and 28 of the repealed Registered Lands Act and sections 24, 25 and 26 of the current Land Registration Act, the Plaintiffs had no legal basis to interfere with the land

Reasoning

The registration statutes vest absolute ownership in registered proprietors subject only to enumerated liabilities, rights and interests, including trustee duties. Since no trust was proved, the 2nd and 3rd Defendants' title was unimpeachable and their counterclaim for a permanent injunction succeeded.

p. 2

Legal principles established

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  • Customary trust is an overriding interest which binds registered land even where not noted on the register; the registered proprietor is not relieved from duties of a trustee
  • A party alleging trust must prove it on a balance of probability
  • Children's rights over their father's estate are inchoate and accrue only upon the father's death

Court orders

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  1. 1.Plaintiffs' case dismissed
  2. 2.Defendants' counterclaim granted with costs to the Defendants

Authorities

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Legislation

  • Registered Lands Act (repealed)section 27(a)
  • Registered Lands Act (repealed)section 28
  • Land Registration Act, 2012sections 24, 25, 26 and 28

Cases cited (1)

  • Muriuki Marigi Vs Richard Marigi Muriuki & 2 Others
    Civil Case No. 189 of 1996 (2008) I KLR 1073
Jurisdiction invoked
Original civil jurisdiction of the High Court/Environment and Land Court over land claims; not expressly stated in the judgment

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, "Antony Kimathi Gitari & another v James Gitari M’Ikiara & 2 others [2018] KEELC 2655 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2655/eng@2018-06-28

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