Rispa Aludo Ochieng v Joshua Omondi Magere & 2 others [2019] KEELC 1865 (KLR)
The bottom line
#A Kenyan court ruled that being the registered owner of family land does not defeat a customary trust, so family members can claim their share.
What this practically means
#Executive summary
#Key legal issues
#Whether registration of the suit land in the plaintiff's name extinguished the defendants' customary trust claims
No; the plaintiff's registered title is subject to customary trusts in favour of the defendants and the estate of deceased 2 under sections 25 and 28 of the Land Registration Act
The court accepted the plaintiff as registered proprietor, but held that registration of title is a creation of law and the circumstances surrounding registration must be examined to determine whether a trust was intended. Relying on Mwangi v Mwangi, Kiebia and Macharia Mwangi Maina, and the defendants' evidence including the elders' minutes (DExhibit 5), the court found the trust established and equity required recognition of the defendants' interests.
Whether the plaintiff proved her claim for eviction on a balance of probabilities
The plaintiff's suit was dismissed as the claim was not proved against the defendants
Although registration and title issuance in the plaintiff's favour on 22nd and 28th August 2012 were proved by PExhibits 1 and 2, the evidence, including the defendants' occupation and the elders' meeting minutes, established a trust. The plaintiff therefore failed to prove entitlement to eviction on a balance of probabilities.
Whether the defendants' counterclaim for a declaration of trust, rectification, sub-division and injunction was proved
The counterclaim was proved on a balance of probability and judgment was entered in terms of orders (a) to (d) of the counterclaim
DW1 and DW2 testified that the land was registered in the name of deceased 1 in trust for the family; the defendants established occupation by DExhibit 4 and the trust by DExhibit 5 (elders' minutes). Elements of trusteeship recognized in Kiebia were satisfied, justifying the declaration of trust, rectification, sub-division and permanent injunction sought.
Legal principles established
#- Rights and interests previously vested in a group, family or individual under African customary law are not extinguished upon registration of trust land
- A registered proprietor's title is subject to trusts, including customary trusts, under sections 25 and 28 of the Land Registration Act
Court orders
#- 1.The plaintiff's suit by way of a plaint dated 17th May 2013 is dismissed
- 2.Judgment entered for the 2nd and 3rd defendants against the plaintiff in terms of orders (a), (b), (c) and (d) sought in their counterclaim dated 8th July 2013 (declaration of trust, cancellation/rectification of register, sub-division into four equal portions, and permanent injunction)
- 3.Each party shall bear his/her own costs
- Jurisdiction invoked
- Environment and Land Court original jurisdiction over disputes relating to land (transfer of the suit from Kisii Environment and Land Court on 16th March 2017)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rispa Aludo Ochieng v Joshua Omondi Magere & 2 others [2019] KEELC 1865 (KLR)", Case Analysis (2019). Not stated in the judgment (plaint dated 17th May 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1865/eng@2019-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.