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ELCAllowedNot stated in the judgment· [2019] KEELC 3312 (KLR)

Kioko Malekya v Nzau Ngusu [2019] KEELC 3312 (KLR)

Environment and Land Court
16 May 2019
MGMBOGO C. G
1,535 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a relative who registered trust land in his own name holds it for the family, not himself, and can be stopped from selling it.

What this practically means

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Executive summary

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The Plaintiff sued for a declaration that the Defendant holds title to land parcels Mbooni/Mavindu/392 and Mbooni/Mavindu/3343 in trust for him and his brothers, or alternatively to be registered as owner, together with a permanent injunction against alienation and costs. He pleaded that the parcels formed part of ancestral land belonging to his late father, and that the Defendant, his uncle, fraudulently had the land registered in his own name during the adjudication process. The Defendant filed an amended defence denying the claim, but although served with a hearing notice he did not attend the hearing on 13th December 2018. The Plaintiff and two witnesses testified; their statements were adopted and they produced letters from the Assistant Chief, the record of deliberations of the Location/Divisional Committee held on 20/07/11, and the certificates of title. In submissions, the Plaintiff's counsel framed four issues and relied on Article 40(6) of the Constitution, Sections 26 and 80(2) of the Land Registration Act, and the case of Peter Muiruri Kamau v Mary Mwihaki Kamau [2017] eKLR. The court found the Plaintiff's evidence uncontroverted and held, on the committee minutes, that the land belonged to the Plaintiff's father and had been left with the Defendant to hold in trust for the Plaintiff and his siblings; the Defendant took advantage of that access to transfer the land to himself, defeating any claim of ownership. Judgment was entered for the Plaintiff in terms of prayers (a), (b) and (c) of the plaint, including the trust declaration, permanent injunction, and costs. The judgment was delivered at Makueni on 16th May 2019 by Mbogo C.G, J, in the absence of the Defendant.

Key legal issues

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01

Whether the Defendant holds the suit parcels in trust for the Plaintiff and his siblings

Holding

The court found, on the minutes of the Location/Divisional Committee of 20/07/11, that the land belonged to the Plaintiff's late father and was left in the Defendant's custody to hold in trust for the Plaintiff and his siblings.

Reasoning

The Defendant, though served, did not attend the hearing and adduced no evidence. His averments in the amended defence that the land was ancestral land of his deceased father and that he was the bona fide owner were unsupported. The clan's record of deliberations confirmed the trust, and the Defendant's own signature on the minutes showed knowledge of the portion he held in trust.

p. 2
02

Whether the Defendant fraudulently acquired the titles

Holding

The court accepted that the Defendant took advantage of his access to the land while holding it in trust and had it registered in his own name, so his ownership of the titles could not stand.

Reasoning

Plaintiff's counsel relied on the definition of fraud in Black's Law Dictionary, Article 40(6) of the Constitution (no protection for unlawfully acquired property), Section 26 of the Land Registration Act on cancellation of fraudulently acquired titles, and Section 80(2) empowering rectification where registration was obtained by fraud or mistake. The court was persuaded by the authority of Peter Muiruri Kamau v Mary Mwihaki Kamau [2017] eKLR.

p. 2

Legal principles established

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  • A person who obtains title to land entrusted to him by taking advantage of that trust acquires no protectable ownership; a title procured by fraud may be cancelled and the register rectified.
  • Uncontroverted evidence, even where a defence is filed, may be accepted if it is credible and supported by documentary exhibits.

Court orders

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  1. 1.Judgment entered for the Plaintiff against the Defendant in terms of prayers (a), (b) and (c) of the plaint
  2. 2.A declaration that the Defendant holds the title to land parcels Nos. Mbooni/Mavindu/392 & Mbooni/Mavindu/3343 in trust for the plaintiff and his brothers
  3. 3.A permanent injunction restraining the Defendant from alienating, selling, charging or in any way disposing of the suit parcels
  4. 4.Costs of the suit to the Plaintiff

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(6)
  • Land Registration Act, 2012Section 26
  • Land Registration Act, 2012Section 80(2)

Cases cited (1)

  • Peter Muiruri Kamau vs. Mary Mwihaki Kamau
    [2017] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over trust and title disputes relating to land, including rectification under Sections 26 and 80 of the Land Registration Act, 2012

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, "Kioko Malekya v Nzau Ngusu [2019] KEELC 3312 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3312/eng@2019-05-16

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