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ELCAllowedNot stated in judgment (ELC suit, Kerugoya)· [2020] KEELC 68 (KLR)

Harrison Maina Josphat v Elias Kamau Josphat (Environment & Land Case 13 of 2013) [2020] KEELC 68 (KLR)

Environment and Land Court
11 December 2020
ECE.C. Cherono
2,178 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 family land registered in one brother's name must be split equally because he holds it in trust for the family.

What this practically means

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Executive summary

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The plaintiff sued his elder brother, the defendant, seeking a determination of trust and transfer of 3 acres out of land parcel KIINE/GACHARO/157, registered in the defendant's name during the 1960 land demarcation. The plaintiff testified that the land was clan land registered in the defendant's name as eldest son to hold in trust for the family under Kikuyu Customary Law, that the parties' parents lived and were buried on the land, and that he has cultivated a portion of it. The defendant denied the trust, asserting the clan gave him the land outright. His sister and a neighbour corroborated that the land was given to him as his own, and that the plaintiff had acquired separate land at Kibingoti. The court identified one issue: whether a trust had been determined over the suit land. Relying on section 28 of the Land Registration Act and the repealed section 30(g) of the Registered Land Act, and applying the Supreme Court's principles in Isack M'Inanga Kiebia, the court found all five elements satisfied: the land was clan land, the claimant is family, the relationship is not remote, he would have been entitled to registration but for its allocation to the eldest son, and the claim is against a family member who is the registered proprietor. Possession, per the Court of Appeal in George Mbiti Kiebia, was not necessary. The suit was allowed: a declaration of trust, an order for equal sub-division and transfer to the plaintiff, liberty for the Deputy Registrar to execute the transfer if the defendant defaults, and each party to bear their own costs given the family relationship.

Key legal issues

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01

Whether a customary trust exists over land parcel KIINE/GACHARO/157 in favour of the plaintiff

Holding

A customary trust was established; the land was clan land allocated to the defendant as eldest son under Kikuyu Customary Law to hold in trust for the family.

Reasoning

The court applied the five principles prescribed by the Supreme Court in Isack M’Inanga Kiebia: the land was clan land before registration; the claimant belongs to the family; the relationship is not remote; he could have been entitled to registration but for the intervening circumstance of registration in the eldest son's name; and the claim is against the registered proprietor who is a family member. The parents lived and were buried on the land, and the clan did not intend absolute allocation to the defendant.

p. 3

Legal principles established

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  • Customary trust is an overriding interest under section 28 of the Land Registration Act that survives first registration and does not need to be noted on the register.
  • Registration under the (repealed) Registered Land Act Cap. 300 did not extinguish rights under Kikuyu Customary Law nor relieve the registered proprietor of trustee obligations.
  • Possession or occupation of the land is not a necessity to prove a customary trust.

Court orders

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  1. 1.A declaration that land parcel No. KIINE/GACHARO/157 is registered in the name of Elias Kamau Josphat, the defendant, to hold in trust for himself and the plaintiff
  2. 2.An order compelling the defendant to sub-divide the suit land into two equal portions and to register the sub-divisions and transfers in favour of the plaintiff and the defendant respectively
  3. 3.Liberty for the Deputy Registrar of the Court to execute the transfer on behalf of the defendant should he fail to do so, upon application by the plaintiff
  4. 4.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Land Registration ActSection 28 (trust or customary trust as overriding interests)
  • Registered Land Act Cap. 300 (repealed)Section 30(g)

Cases cited (3)

  • Kanyi Vs Muthiora
    (1984) K.L.R 712
  • Isack M’ Inanga Kiebia Vs Isaaya Theuri M’ Lintari & Another
    (2018) e K.L.R
  • George Mbiti Kiebia & another Vs Isaya Theuri M’ Lintari & another
    (2014) e K.L.R
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land claims (trust in land parcel KIINE/GACHARO/157); Land Registration Act No. 3 of 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, "Harrison Maina Josphat v Elias Kamau Josphat (Environment & Land Case 13 of 2013) [2020] KEELC 68 (KLR)", Case Analysis (2020). Not stated in judgment (ELC suit, Kerugoya). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/68/eng@2020-12-11

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