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ELCDismissedCase No 541 of 2013· [2018] KEELC 4003 (KLR)

Julius Muturi Macharia & 3 others v Samuel Joseph K. Macharia [2018] KEELC 4003 (KLR)

Environment and Land Court
22 February 2018
4,437 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed siblings' claim that their brother held family land in trust because they offered no evidence proving the trust existed.

What this practically means

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Executive summary

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The plaintiffs, siblings of the defendant, sued claiming that the defendant, the registered proprietor of Naivasha/Maraigushu Block 7/277 and Block 7/662, holds the two plots in trust for the family. They sought a declaration of trust, a permanent injunction against quarrying, leasing, charging or selling, and an order for transfer of the properties to three named brothers to hold in trust. Their case was that their deceased father bought the share in North Karati Co-operative Society which was registered in the name of their brother Joel Ngugi Macharia as trustee for their mother, and was later transferred to the defendant without the family's knowledge. The defendant testified that Joel transferred his shares to him in exchange for the defendant's share of ancestral land in Murang'a, and that he has been the absolute owner since 1989. The court framed two issues: whether the defendant holds the properties in trust, and whether the plaintiffs are entitled to the reliefs sought. Applying the principle that a trust is a matter of evidence and is never presumed save in absolute necessity, and that customary law must be proved by evidence, the court found the plaintiffs' customary trust claim was raised only at submissions stage without evidence. The court also noted the plaintiffs' prolonged silence since registration in 1989, the defendant's construction of a permanent house and water tank, and his burials of his wife and two children on the land without protest, all corroborating absolute ownership. The plaintiffs failed to prove any trust; the suit was dismissed with each party bearing own costs.

Key legal issues

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01

Whether the defendant holds the suit properties in trust for the plaintiffs

Holding

No trust was established; the plaintiffs failed to prove either an express, implied or customary trust

Reasoning

The court held that a trust is a matter of evidence requiring proof, and that the law never presumes a trust save in absolute necessity. The plaintiffs' customary trust claim was raised for the first time in submissions without evidence. The court also found the plaintiffs' conduct - long silence since registration in 1989, the defendant's construction of a house and burials on the land without protest - corroborated the defendant's absolute ownership.

p. 7
02

Whether the plaintiffs are entitled to the reliefs sought

Holding

The plaintiffs were not entitled to any of the prayers in the plaint

Reasoning

Having found no proof of a trust, the court held that none of the prayers (declaration of trust, permanent injunction, compulsory transfer) could issue. Although costs ordinarily follow the event, the court exercised discretion to order each party to bear its own costs given the sibling relationship of the parties.

p. 7
03

Whether customary law was available to the plaintiffs to prove a customary trust

Holding

Customary law was not available because it was never pleaded or proved at trial

Reasoning

The court noted that the issue of customary law never came up at trial and no evidence was led on it, being introduced only at submissions stage. Relying on Kimani v Gikanga, the court reiterated that the party propounding customary law must prove it by evidence, and that a Kikuyu customary trust therefore could not ground the plaintiffs' claim.

p. 7

Legal principles established

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  • Whether or not a trust exists is a matter of evidence and the court will never presume a trust save in cases of absolute necessity
  • Customary law is a question of fact that must be proved by evidence, with the onus on the party propounding it
  • Trusts, including customary trusts, are overriding interests under section 28 of the Land Registration Act which need not be noted on the register

Court orders

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  1. 1.The suit is dismissed
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Land Registration ActSection 25
  • Land Registration ActSection 28
  • Registered Land Act (repealed)Section 28
  • Land Registration ActSection 26(1)
  • Evidence Act, Cap 80Sections 51 and 52(2)

Cases cited (12)

  • Dorcas Indombi Wasike v Benson Wamalwa Khisa & another
    [2010] eKLR
  • Mbothu & 8 Others vs Waitimu & 11 Others
    [1986] KLR 171
  • Eliud Maina Mwangi v Margaret Wanjiru Gachangi
    [2013] eKLR
  • Kimani vs Gikanga
    (1965) EA 735
  • Sakina Sote Kaittany & Another vs Mary Wamaitha
    CA No 108 of 1995
  • Atemo vs Imujaro
    (2003) KLR 435
  • Joseph Githinji Gathimba vs Charles Kingori Gathimba
    [2001] eKLR
  • James Ndungu Kiarie vs Geoffrey Mwangi Kinuthia & another
    [2012] eKLR
  • Esiroyo v. Esiroyo
    [1973] E.A 388
  • Obiero v. Obiero
    [1972] E.A 227
  • John Peter Mureithi & others v. The Attorney General & 7 others
  • Mbui Mukangu v. Gerald Mutwiri Mbui
    C.A No. 281 of 2000
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit properties Naivasha/Maraigushu Block 7/277 and 7/662 (no constitutional or statutory provision expressly invoked 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, "Julius Muturi Macharia & 3 others v Samuel Joseph K. Macharia [2018] KEELC 4003 (KLR)", Case Analysis (2018). Case No 541 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4003/eng@2018-02-22

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