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ELCPartially AllowedNot stated in judgment (originating by plaint dated 9th March 2015)· [2019] KEELC 2986 (KLR)
Danson Chesum Suter v Peter Suter & another [2019] KEELC 2986 (KLR)
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·~9 min to read original · ~4 min briefThe bottom line
#An Eldoret court ruled that a brother registered as owner of family land during childhood holds it in trust and must share it with his siblings.
What this practically means
#Executive summary
#This was an original suit before the Environment and Land Court at Eldoret, decided by M.A. Odeny J, in which the sole surviving issue arose from a counterclaim. The plaintiff, Danson Suter, sued seeking a temporary injunction, a declaration that he was the rightful owner of plot No. MOIBEN/KAPSOWAR/1854, vacant possession, costs and interest. The 1st defendant, Peter Kipkoech Suter, filed a defence and counterclaim seeking declarations that the plaintiff held the suit land in trust for himself and the 2nd defendant, an order for subdivision and registration of titles, and a permanent injunction. The plaintiff withdrew his suit entirely on 9th May 2017, and by consent recorded on 28th February 2018 the 2nd defendant was allotted 1 acre and discharged. The trial therefore concerned only the counterclaim. The 1st defendant testified that the land was family land registered in the plaintiff's name because he was the only adult child at demarcation, and that the father intended it to be held in trust. The court applied the principles on resulting and customary trusts from Twalib Hatayan, Peter Gitonga and Joseph M'itonywa M'kirigia, and found that since all siblings were minors at registration, the plaintiff held the land in trust. The plaintiff's claim to a larger share for participating in forest clearance was rejected as unproven. The counterclaim was allowed as prayed: a declaration that the 1st defendant owns 2.5 acres, orders for subdivision and registration of an amended Registry Index Map and issuance of titles, a permanent injunction against the plaintiff, with each party bearing their own costs.
Key legal issues
#01
Whether the plaintiff held the suit land in trust for the defendants and what acreage
Holding
Yes - the plaintiff held the land in trust for his brothers; the 1st defendant is entitled to 2.5 acres and the 2nd defendant to 1 acre (by consent)
Reasoning
The court found it undisputed that the land was family land belonging to the parties' father and that the defendants were minors when the land was registered in the plaintiff's name, leaving the father no alternative but to register the older brother. The plaintiff's claim to a larger share for participating in forest clearance was unproven. Circumstances of registration evidenced a trust; the counterclaim was allowed as prayed.
p. 3
Legal principles established
#- A trust over registered land can be created under customary law, and the circumstances surrounding registration must be examined to determine the purpose of the registration and whether a trust was envisaged
- Where land is registered in the name of one sibling because the other beneficiaries were minors at registration, the registered proprietor holds it in trust for the family
Court orders
#- 1.A declaration that the 1st defendant is the rightful owner of 2.5 acres out of the suit land
- 2.An order directing the County Surveyor Elgeyo Marakwet to subdivide the suit land and give the parcel to its rightful owners
- 3.An order directing the County Land Registrar, Elgeyo Marakwet County to register an amended Registry Index Map and issue titles upon sub-division and payment of the requisite fees
- 4.A permanent injunction restraining the plaintiff from trespassing or interfering with the 1st defendant's portion out of the suit land
- 5.Each party to bear their own costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction under the Land Registration Act (Sections 24, 25 and 26 cited) and the law of trusts over registered family land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Danson Chesum Suter v Peter Suter & another [2019] KEELC 2986 (KLR)", Case Analysis (2019). Not stated in judgment (originating by plaint dated 9th March 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2986/eng@2019-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.