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ELCDismissedMurang'a ELC OS No. 115 of 2017· [2019] KEELC 4582 (KLR)

Alice Wairimu Macharia v Kirigo Philip Macharia [2019] KEELC 4582 (KLR)

Environment and Land Court
14 February 2019
JKJ G Kemei
3,103 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a daughter's claim that her mother held family land in trust, because she provided no proof of the trust.

What this practically means

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Executive summary

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The Applicant, a daughter, sued her mother, the Respondent, by Originating Summons filed 2 October 2017 seeking a determination that parcels LOC 14/KIRU/3963, 3964 and 3969, derivatives of the original parcel LOC14/KIRU/492 of the late Philip Macharia, are held in trust for her as a beneficiary of the estate, and for an equal and equitable sharing of the suit lands. She complained that the Respondent subdivided her portion in 2000, sold parts, gave the sons 4 acres each but offered her only 1.35 acres without river access. The Respondent admitted being the absolute registered proprietor, denied any trust, and asserted her 1.35-acre offer was mere benevolence. The Court framed three issues: whether the Respondent is absolute proprietor, whether she held the land in trust, and costs. Applying sections 23-26 of the Land Registration Act and the Supreme Court's decision in Isack Kieba M'Inanga, the Court held the Respondent's title was prima facie absolute, and that a customary trust must be proved by evidence laying bare the root of title - family or clan land before registration, a non-remote claimant relationship, and entitlement to registration but for intervening circumstances. No such evidence was led; a trust cannot be implied absent a clearly determined intention to create one. The Court further held that the claim's substance was a succession claim over which it has no jurisdiction. The suit was dismissed with each party bearing their own costs given their familial relationship.

Key legal issues

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01

Whether the Respondent is the absolute proprietor of the suit lands

Holding

Yes - the certified searches showed the Respondent as registered proprietor, and no fraud or corrupt scheme was proved to impeach the titles

Reasoning

The Applicant availed certificates of official search showing the Respondent as proprietor of the suit parcels. Under sections 23, 24, 25 and 26 of the Land Registration Act, such title is prima facie evidence of ownership, subject only to registered encumbrances and impeachable only for fraud or a corrupt scheme to which the proprietor was a party. No such proof was tendered.

p. 3
02

Whether the Respondent held the suit lands in trust for the Applicant

Holding

No - the Applicant failed to prove a customary trust or any other trust

Reasoning

Relying on the Supreme Court decision in Isack Kieba M'Inanga, the claimant must show the land was family or clan land before registration, a family relationship not too remote, entitlement to registration but for intervening circumstances, and a claim against a registered family member. The Applicant led no evidence on how or why the land was first registered or that it was encumbered by a trust. Neither the certificate of succession nor any evidence established an intention to create a trust.

p. 3
03

Jurisdiction over the Applicant's claim of unequal distribution of the deceased's estate

Holding

The Court lacks jurisdiction to determine succession matters

Reasoning

The substance of the Applicant's complaint - that she was not adequately provided for from the estate, was excluded from sale proceeds and received less than her brothers - is a claim in succession. Succession is outside the ELC's mandate and the proper forum is a succession court under the Law of Succession Act. The 1980 succession preceded the current Act.

p. 4

Legal principles established

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  • The legal burden to prove the existence of a customary trust rests on the party asserting it, who must lay bare the root of the title
  • A trust cannot be implied by the Court absent a clearly determined intention to create it
  • A registered proprietor's title is prima facie evidence of absolute ownership, impeachable only on proof of fraud or a corrupt scheme

Court orders

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  1. 1.The suit is dismissed
  2. 2.Each party to meet their own costs of the suit

Authorities

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Legislation

  • Land Registration ActSections 23, 24, 25, 26, 28
  • Land Registration Act Cap 300 (repealed)Sections 27, 28
  • Registration of Land Act 2012Section 28
  • Law of Succession ActSections 35-41, 37

Cases cited (6)

  • Esther Ndegi Njiru & Another v Leonard Gatei
    [2014] eKLR
  • Njenga Chogera v Maria Wanjira Kimani & 2 Others
    [2005] eKLR
  • Muthuita v Muthuita
    [1982-88] 1 KLR 42
  • Isack Kieba M'Inanga v Isaaya Theuri M'Lintari & Another
    SCoK No 10 of 2015
  • Peter Ndungu Njenga v Sophia Watiri Ndungu
    [2000] eKLR
  • Juletabi African Adventure Limited & Another v Christopher Michael Lockley
    [2017] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (Article 162(2)(b) ELC as the court seized of the land claim; though the Court found no jurisdiction over succession matters)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Alice Wairimu Macharia v Kirigo Philip Macharia [2019] KEELC 4582 (KLR)", Case Analysis (2019). Murang'a ELC OS No. 115 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4582/eng@2019-02-14

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