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ELCDismissedNot stated in judgment (suit filed 17/1/14)· [2019] KEELC 3546 (KLR)

Elijah Njuguna Njoki v Peter Muriu Njuguna & 4 others [2019] KEELC 3546 (KLR)

Environment and Land Court
2 May 2019
JKJ. G. Kemei
3,306 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court ruled that land registered in one brother's name actually belonged equally to all his siblings under a customary trust, blocking eviction.

What this practically means

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Executive summary

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The Plaintiff, registered owner of LOC2/GACHARAGE/1129 since 10/1/64 during demarcation and consolidation when he was a child of about 7, sued his siblings (the Defendants, children of the late Njoki Harun) seeking their eviction as licensees. The 1st and 2nd Defendants counterclaimed that the Plaintiff held the land in trust for himself and all the children of Njoki Harun, seeking a declaration of trust, its dissolution, and equal subdivision. The Plaintiff contended the land was a gift from his grandfather for assistance rendered; the Defendants relied on Land Dispute Tribunal proceedings in which their mother claimed she bought the land from her father and registered it in the Plaintiff's name because she, an unmarried woman, could not be registered at the time. Applying section 28 of the Land Registration Act and the Supreme Court's criteria in Isack M'Inanga Kieba, the court found the land was family/clan land, the Defendants' relationship was close, and there were sufficient intervening circumstances (the Plaintiff's minority and the era's reluctance to register women as landowners) explaining the registration. The title was silent on any gift and the court found the Plaintiff's evidence not entirely truthful. The suit was dismissed, a customary trust declared in equal shares, the trust determined, and subdivision ordered, with the Deputy Registrar empowered to execute documents if the Plaintiff failed to sign within 30 days. The Plaintiff was ordered to pay the Defendants' costs.

Key legal issues

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01

Whether the Defendants proved a customary trust over the suit land

Holding

The court found that a customary trust existed; the Plaintiff, registered as a child while women were seldom registered as landowners, held the family/clan land in trust for himself and his siblings in equal shares

Reasoning

Applying the Isack M'Inanga Kieba criteria, the court found the land flowed from the grandfather as family/clan land, the claimants are family members with a close relationship, and there were sufficient intervening circumstances (the Plaintiff's minor age and the era's reluctance to register women) explaining the registration in his name. The title was silent on any gift, the Plaintiff's evidence was found not entirely truthful, and the Defendants' decades-long undisturbed occupation supported the trust.

p. 4
02

Whether the Defendants should be evicted as mere licensees

Holding

Eviction was refused; the Defendants were not licensees but beneficiaries of a customary trust entitled to equal shares

Reasoning

Since a customary trust was established as an overriding interest, the Defendants were on the land as of right and not as revocable licensees. The Plaintiff's claim for vacatur and forcible eviction was therefore dismissed and the trust was ordered determined with subdivision in equal shares.

p. 2

Legal principles established

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  • Customary trust is an overriding interest in registered land under section 28 of the Land Registration Act and does not require noting on the register
  • Occupation and possession are not necessary for a customary trust to be established
  • The circumstances surrounding registration of title must be examined to determine whether a trust was envisaged

Court orders

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  1. 1.The Plaintiff's suit be and is hereby dismissed
  2. 2.A declaration that the Plaintiff holds the suit land in trust for himself, the Defendants and his other Brothers in equal shares
  3. 3.The customary trust in respect of the suit land be and is hereby determined
  4. 4.If the Plaintiff within 30 days does not sign all documents necessary to facilitate sub-division of the suit land, the Deputy Registrar of this Honourable Court does execute all the documents necessary to facilitate execution and/or effect of the orders made herein
  5. 5.The Plaintiff shall pay the Defendants' costs of this suit

Authorities

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Legislation

  • Land Registration ActSection 28
  • Evidence ActSection 51(1)

Cases cited (6)

  • Ruth Wamucii Kamau Vs Monica Mirae Kamau
    (1984) EKLR
  • Muchungu Vs Muchungu
    (1984) KLR 202
  • Kimani Gituanja Vs Jane Njoki Gituanja
    (1983) EKLR
  • Isack M'Inanga Kieba Vs Isaaya Theuri M'Lintari & Isack Ntongai M'Lintari
    SCOK Petition 10 of 2015
  • Kiarie v. Kinuthia
  • Peter Gitonga Vs Francis Maingi M'Ikiara
    Meru HC.CC NO. 146 of 2000
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes

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, "Elijah Njuguna Njoki v Peter Muriu Njuguna & 4 others [2019] KEELC 3546 (KLR)", Case Analysis (2019). Not stated in judgment (suit filed 17/1/14). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3546/eng@2019-05-02

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