Elijah Kogi Gichaga & another v Samuel Munyua Gichaga [2019] KEELC 1098 (KLR)
The bottom line
#A Kenyan court dismissed brothers' claim that their registered sibling held family land in trust because they proved no financial contribution or agreement, ordering their eviction.
What this practically means
#Executive summary
#Key legal issues
#Whether the registered proprietor held Plot No. 60 Ngorika in trust (customary or constructive) for his brothers
No trust was established: the Defendant balloted for and was allotted the land in his own right as a person employed by the white settler, and no evidence of common intention, agreement, or contribution by the Plaintiffs or their father was adduced
The court traced the acquisition: the Defendant, being employed by the settler Gateru and holding an identity card, balloted and was allotted the land by the Settlement Fund Trustees, servicing the loan. The Plaintiffs' claim that their father bought the land or substituted the Defendant failed because the Muranga land had been sold before balloting and Meshack, not the Defendant, was the eldest son. No direct financial contribution by the Plaintiffs or their father was proved; helping deliver farm produce was insufficient.
Whether the Plaintiffs' occupation and family relationship raised an overriding trust interest not requiring register entry
Although customary trust is an overriding interest not needing register entry, it must still be proved; the register showing no trust entry and absence of evidence defeated the claim
The Land Registrar testified that if a property were held in trust the entry ought to be express on the register, and there was no such entry. Citing Prisca Jesondin Cumo v Nally Jobor, the court held that even overriding interests must be proved. The bare assertions by the Plaintiffs' witnesses that the land was held in trust, without documentary proof of purchase or contribution, could not displace the registered title.
Legal principles established
#- Trust is a question of fact which must be proved by evidence; the burden lies on the party asserting the trust
- Courts will not imply a trust save to give effect to the clearly determined intention of the parties
- A constructive trust arises where there is a common intention of a beneficial interest and the claimant has acted to his detriment in reliance on it
- To prove a constructive trust the claimant must show a bargain, undertaking, understanding or promise with the registered owner
Court orders
#- 1.The defence and counter claim is dismissed with costs
- 2.An order of mandatory and permanent injunction issued against the Defendants
- 3.A declaration that the Defendants, whether by themselves, their servants and or agents or otherwise whomsoever, are not entitled to remain on that portion of land No. Nyandarua/Ngorika 346
- 4.The Defendants shall vacate the parcel of land within 90 days of delivery of the judgment, failing which the Plaintiff is authorized to use police assistance to maintain law and order and enable the Plaintiff and his authorized agent to evict the Defendant
- Jurisdiction invoked
- Environment and Land Court jurisdiction over land disputes (matter transferred to ELC upon its establishment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elijah Kogi Gichaga & another v Samuel Munyua Gichaga [2019] KEELC 1098 (KLR)", Case Analysis (2019). ELC No. 14 of 2017 (Formerly Nakuru ELC 102 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1098/eng@2019-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.