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ELCAllowedELC Case No. 298 of 2017· [2018] KEELC 4022 (KLR)

Grace Njoki Kiarie v Elizabeth Wambui Kiarie & another [2018] KEELC 4022 (KLR)

Environment and Land Court
1 March 2018
1,348 words in judgment
View original judgmentRead on Kenya Law Watch case
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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 plaintiff and the 1st defendant were co-trustees under a confirmed grant issued on 8/2/2007 in Succession Cause No. 394 of 2001 in the estate of Kiarie Githua, directed to hold 2.05 acres of LR No. Maragua/Ridge 1840 in trust for two brothers of the plaintiff (HMK and SMK), who were minors/sick. Notwithstanding this trusteeship, the 1st defendant on 12/6/2014 transferred the suit land to the 2nd defendant, obtaining Land Control Board consent without the plaintiff's concurrence, having allegedly subdivided the land and registered herself as absolute owner. The plaintiff sued seeking a declaration that the parcel belongs to the beneficiaries and an order compelling the 2nd defendant to transfer it back, pleading fraud. Both defendants, initially represented by Messrs Njoroge Kugwa who ceased acting for want of instructions, failed to appear at the hearing on 13/12/17 despite personal service, and the matter proceeded exparte. The court held that the plaintiff's case was largely undefended, that the confirmed grant had not been revoked or set aside, and that the 1st defendant, in breach of the subsisting trust, conveyed nothing to the 2nd defendant. Guided by the probate court's determination, the court declared the suit land to belong to HMK and SMK jointly, cancelled the transfer to the 2nd defendant registered on 1/9/15, directed the Deputy Registrar to sign a transfer re-registering the land in the names of the two trustees to hold in trust for the beneficiaries as per the confirmed grant, and awarded costs to the plaintiff against the defendants.

Key legal issues

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01

Validity of transfer of trust land by one co-trustee alone

Holding

The transfer was a nullity; the 1st Defendant conveyed nothing to the 2nd Defendant because the land belonged to the beneficiaries as determined by the probate court.

Reasoning

The confirmed grant in Succession Cause No. 394 of 2001 directed that the 2.05 acres be held in trust by the Plaintiff and the 1st Defendant for the two minor/sick beneficiaries. The grant was undischarged and had not been revoked. The 1st Defendant transferred the land without the co-trustee's consent, having bypassed her. The Plaintiff's case was largely undefended, the Defendants having ceased to be represented and failed to attend the hearing despite personal service.

02

Entitlement to declaratory relief over land held in trust

Holding

The Plaintiff was entitled to the declaration that the suit land belongs to the beneficiaries HMK and SMK jointly.

Reasoning

Guided by the decision of the probate court in the confirmed grant, and in the absence of any evidence that the certificate of confirmed grant had been revoked or set aside, the court found the trusteeship undischarged and granted the declaratory orders sought, including cancellation of the impugned transfer and re-registration in the trustees' names.

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Legal principles established

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  • A trustee who transfers trust land without the co-trustee's consent conveys no interest; the beneficiaries' entitlement as determined by the probate court prevails over a subsequent transfer.

Court orders

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  1. 1.Declared that LR No. Maragua/Ridge 1840 belongs to HMK & SMK to own jointly
  2. 2.Cancelled the transfer to the 2nd Defendant registered on 1/9/15
  3. 3.Directed the Deputy Registrar of the Court to sign a transfer to Elizabeth Wambui Kiarie and Grace Njoki to hold LR No. Maragua/Ridge 1840 in trust for Hamuel Mbochi Kiarie & Samuel Maina Kiarie as per the certificate of confirmation of grant dated 8th February 2007
  4. 4.Costs of the suit to be borne by the Defendants

Authorities

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Legislation

  • Certificate of confirmation of grantSuccession Cause No. 394 of 2001
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - jurisdiction over land disputes; court guided by probate court's confirmed grant in Succession Cause No. 394 of 2001

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, "Grace Njoki Kiarie v Elizabeth Wambui Kiarie & another [2018] KEELC 4022 (KLR)", Case Analysis (2018). ELC Case No. 298 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4022/eng@2018-03-01

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