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ELCPartially AllowedNot stated in the judgment· [2019] KEELC 268 (KLR)

Josephat Ng’ang’a Kinyanjui v Raphael Kariuki Kinyanjui [2019] KEELC 268 (KLR)

Environment and Land Court
16 December 2019
BEB M Eboso
984 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 sued his brother, the defendant, by plaint dated 30 May 2014, alleging that in about 1976 they jointly purchased Land Parcel Ndarugu/Gacharage/1443 (one acre) using proceeds of their joint transport business, and agreed to register it in the defendant's name to hold in trust. The land was informally sub-divided into two equal 0.5-acre portions; each sibling settled on his portion and planted tea. The defendant refused to transfer the plaintiff's portion and instead issued a notice requiring the plaintiff to vacate. The plaintiff sought a mandatory injunction against eviction, a determination on apportionment, costs and interest. Earlier, an elders' committee and the Gatundu South Land Dispute Tribunal had resolved the land be shared equally, but the High Court set aside the tribunal award as adopted, prompting this suit. The defendant entered appearance through Chris Maina & Co Advocates but filed no defence and did not attend the hearing, which proceeded ex parte on 20 May 2019 after proof of service. The plaintiff testified, adopted his written statement, and produced the title deed, a demand letter, the tribunal award, the elders' verdict and a consent order quashing the award. Counsel for the plaintiff relied on Sections 30(4) and 28(b) of the Land Registration Act, submitting that a trust is an overriding interest requiring no noting on the register. Holding the plaintiff's case uncontroverted, Eboso J found the trust proved on a balance of probabilities. The court issued a mandatory injunction restraining eviction, determined each party entitled to 0.5 acre, ordered the defendant to effect sub-division and transfer (failing which the Deputy Registrar would execute the documents), and ordered each party to bear their own costs. Judgment was delivered in Nairobi on 16 December 2019.

Key legal issues

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01

Existence of a trust in favour of the plaintiff

Holding

The plaintiff proved, on a balance of probabilities, that the defendant holds 0.5 acre of the suit property in trust for him

Reasoning

The suit proceeded ex parte as the defendant filed no defence. The plaintiff's uncontroverted evidence showed joint purchase from joint transport business proceeds, registration in the defendant's name to hold in trust, informal sub-division into equal halves, long occupation by both parties, and a prior tribunal award in the plaintiff's favour. In the absence of any defence or controverting evidence, the court accepted this account and found the trust established.

p. 2
02

Apportionment of the suit property

Holding

The plaintiff is entitled to the 0.5 acre portion he occupies and the defendant to the remaining 0.5 acre

Reasoning

The parties had informally sub-divided the one-acre parcel into two equal portions and each settled on his half, planting tea thereon. Consistent with the pleaded trust and the agreement at purchase, the court formalised that arrangement, ordering execution of documents for sub-division and transfer with a default provision empowering the Deputy Registrar.

p. 2

Legal principles established

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  • A trust over registered land is an overriding interest that need not be noted on the register, and where uncontroverted evidence establishes such a trust the registered proprietor holds the land to that extent for the beneficiary

Court orders

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  1. 1.A mandatory injunction restraining the defendant, his servants, agents and/or any person acting on his instructions, against evicting the plaintiff from the 0.5 acre portion he occupies
  2. 2.Determination that the plaintiff is entitled to the 0.5 acre portion he occupies and the defendant the other 0.5 acre portion
  3. 3.The defendant shall execute necessary documents to effect sub-division and transfer of the 0.5 acre portion to the plaintiff; in default the Deputy Registrar shall execute the documents
  4. 4.Each party shall bear their respective costs of the suit

Authorities

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Legislation

  • Land Registration ActSection 30(4)
  • Land Registration ActSection 28(b)
Jurisdiction invoked
Not stated in the judgment; original civil suit (plaint) under the Land Registration Act

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, "Josephat Ng’ang’a Kinyanjui v Raphael Kariuki Kinyanjui [2019] KEELC 268 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/268/eng@2019-12-16

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