Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedELC Suit No. 83 of 2018· [2019] KEELC 1686 (KLR)

David Mutwiwa Kioko & another v Katumo Nduuti Land Registrar, Makueni County [2019] KEELC 1686 (KLR)

Environment and Land Court
26 September 2019
MGMBOGO C. G.
929 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court cancelled a relative's title to ancestral family land, confirming that family land can be held in trust even when registered in one person's name.

What this practically means

#

Executive summary

#
The Environment and Land Court at Makueni, per Mbogo C. G., J., allowed an undefended land claim brought by two nephews against their uncle, Katumo Nduuti, over parcel Kisau/Ngoni/387. The Plaintiffs claimed the land was ancestral property of their grandfather Nduuti Mulei, which the 1st Defendant fraudulently caused to be registered in his own name during adjudication and demarcation. Only the 1st Defendant was served but he neither entered appearance nor filed a defence; the suit proceeded as undefended. The 1st Plaintiff adopted his statement, produced a certificate of official search, and called a clan official of the Eombe clan, which had arbitrated the family dispute at the instance of MAPACA but failed to resolve it, advising the Plaintiffs to seek legal redress. Counsel for the Plaintiffs relied on the Supreme Court decision in Isaac M'Inanga Kieba vs. Isaaya Theuri M'Lintari and Another [2018] eKLR, which affirmed that a proved customary trust binds a first-registered proprietor under the proviso to Section 28 of the Registered Land Act. Finding no evidence to the contrary, the court held the Plaintiffs had established a cause of action and entered judgment in terms of prayers (a), (b), (c) and (d): declaration of nullity of the registration, cancellation of the 1st Defendant's title, issuance of new title deeds to the Plaintiffs and the 1st Defendant jointly and in equal shares, plus costs and interest. Judgment was signed, dated and delivered at Makueni on 26 September 2019.

Key legal issues

#
01

Whether ancestral family land registered in the name of one family member is held in trust for other beneficiaries

Holding

Yes - the Plaintiffs proved an ancestral claim to the suit property and a cause of action against the 1st Defendant, warranting cancellation of the title and joint registration

Reasoning

The 1st Plaintiff gave uncontroverted evidence that the suit property belonged to his late grandfather, Nduuti Mulei, and that the 1st Defendant fraudulently had it registered in his own name during adjudication. Clan arbitration efforts failed. There being no evidence to the contrary (the suit proceeding undefended), the court accepted the customary trust claim and relied on the Supreme Court's exposition in Isaac M'Inanga Kieba on section 28 of the Registered Land Act.

p. 2

Legal principles established

#
  • A customary trust, if proved, is one of the trusts to which a first-registered proprietor is subject under the proviso to Section 28 of the Registered Land Act, and the categories of customary trust are not closed

Court orders

#
  1. 1.Declaration that the registration of land parcel KISAU/NGONI/387 in the name of the 1st Defendant is null, void and of no legal effect
  2. 2.Order to the Land Registrar, Makueni County to cancel the title deed for KISAU/NGONI/387 issued to the 1st Defendant
  3. 3.Order to the Land Registrar, Makueni County to issue new title deeds in the names of the Plaintiffs and the 1st Defendant to hold jointly and in equal shares
  4. 4.Costs and interest against the 1st Defendant

Authorities

#

Legislation

  • Registered Land Act (repealed)Section 28 (proviso)
  • Land Registration Act

Cases cited (1)

  • Isaac M'Inanga Kieba vs. Isaaya Theuri M'Lintari and Another
    [2018] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - original jurisdiction over land registration and title disputes (implied; not expressly quoted)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "David Mutwiwa Kioko & another v Katumo Nduuti Land Registrar, Makueni County [2019] KEELC 1686 (KLR)", Case Analysis (2019). ELC Suit No. 83 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1686/eng@2019-09-26

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