Julius Muturi Macharia & 3 others v Samuel Joseph K. Macharia [2018] KEELC 4003 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the defendant holds the suit properties in trust for the plaintiffs
No trust was established; the plaintiffs failed to prove either an express, implied or customary trust
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.
Whether the plaintiffs are entitled to the reliefs sought
The plaintiffs were not entitled to any of the prayers in the plaint
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.
Whether customary law was available to the plaintiffs to prove a customary trust
Customary law was not available because it was never pleaded or proved at trial
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.
Legal principles established
#- 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
#- 1.The suit is dismissed
- 2.Each party to bear own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.