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ELCDismissedNot stated in judgment (Plaint dated 26th August, 2010)· [2018] KEELC 4747 (KLR)

Robert Mbui v Kennedy Mwanzia Musembi [2018] KEELC 4747 (KLR)

Environment and Land Court
26 January 2018
2,559 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 a registered owner's eviction claim because a son's 20-year occupation, based on his father's promise of the land, created a trust overriding the title.

What this practically means

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Executive summary

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The Plaintiff, a neighbour of the Defendant, purchased two parcels of land (Mavoko Town Block 3/7084 and 7085) from the Defendant's father (PW2) under an agreement dated 20th May 2010 for Kshs. 4,000,000, and obtained title deeds on 3rd June 2010. He sued for a declaration of ownership, vacant possession and mesne profits, alleging the Defendant refused to vacate. The Defendant resisted, contending he had been settled on the land by his parents since 1991, that his long occupation created a constructive/customary trust under Section 28 of the Land Registration Act, and that the sale was collusive — his mother having separately sued PW2 over the same properties as matrimonial property, and having lodged objections to the Land Control Board consent. The court found the Defendant had been allowed onto the land by his father for over twenty years, developed it in the belief it was bequeathed to him, and consistently objected to its sale (including by a caution). Actual occupation was held to be an overriding interest, and applying the principles in Alan Kiema and Mbui Mukangu, the court held a constructive trust arose in the Defendant's favour notwithstanding the Plaintiff's registration. The Plaintiff, who knew of the occupation and objections, should not have purchased. The Plaint dated 26th August 2010 was dismissed with costs.

Key legal issues

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01

Whether a constructive trust arose in favour of the Defendant

Holding

Yes; the vendor allowed the Defendant to occupy the land for over twenty years, leading him to believe it was bequeathed to him

Reasoning

PW2 allowed the Defendant on the land since 1991; the Defendant developed and utilised it for over twenty years in the belief he was entitled to it. Applying Halsbury's requirements of common intention and detrimental reliance, and the Court of Appeal's decision in Mbui Mukangu, the court found a constructive trust that the vendor could not defeat by sale.

p. 4
02

Whether the Plaintiff's registered title is defeated by the Defendant's actual occupation

Holding

Yes; actual occupation is an overriding interest, and the Plaintiff, knowing of the occupation and objection, should not have purchased

Reasoning

The court traced the doctrine from Section 30(g) of the Registered Land Act (as interpreted in Alan Kiema) to Section 28 of the Land Registration Act. The Plaintiff, a neighbour who knew of the Defendant's occupation and objections before the Land Control Board, could not rely on the sanctity of title.

p. 5
03

Whether the Defendant was a mere licensee whose presence could be terminated

Holding

No; his occupation rested on his father's conduct creating a constructive trust, not a licence

Reasoning

The Defendant had been settled on the land by his parents since 1991, developed it (house, electricity, water), and objected to the sale through a caution, letters, and objections before the Land Control Board. This conduct, plus the mother's litigation, belied the claim that he consented as a licensee.

p. 2

Legal principles established

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  • Where a parent, without duress, coercion or fraud, allows a child to live on his land and leads the child to believe it has been bequeathed to him, he cannot sell the land without the child's consent
  • Actual occupation of land is an overriding interest; under Section 28 of the Land Registration Act all registered land is subject to trusts, including customary trusts
  • A constructive trust arises where there is a common intention of a beneficial interest and the claimant has acted to his detriment on that belief

Court orders

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  1. 1.The Plaintiff's Plaint dated 26th August, 2010 is dismissed with costs

Authorities

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Legislation

  • Land Registration ActSection 28 and Section 28(b)
  • Registered Land Act, Cap 300Section 30(g)

Cases cited (4)

  • NWK vs JKM & Another
    (2013) eKLR
  • Mbui Mukangu vs. Gerald Mutwiri Mbui
    (2004) eKLR
  • Cyprian Kirika & Another vs. Mary Ciokabogo Njuki & 2 others
  • Alan Kiema vs. Ndia Mathunya & others
    Civil Appeal No. 42 of 1978
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim for declaration of ownership, vacant possession and mesne profits (not expressly cited 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, "Robert Mbui v Kennedy Mwanzia Musembi [2018] KEELC 4747 (KLR)", Case Analysis (2018). Not stated in judgment (Plaint dated 26th August, 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4747/eng@2018-01-26

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