Monicah Thomas & 5 others v Henry Nyakoe Kasora [2020] KEELC 1155 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over trust claims in land
The Environment and Land Court, not the succession court, has jurisdiction to determine proprietary interests in land based on trust.
The court disagreed with the trial magistrate's view that trust claims belong in succession proceedings, associating itself with Musyoka J in Re Estate of Mbai Wainaina. It reasoned that customary trust is an overriding interest under section 28 of the Land Registration Act, which lists 'Trusts including customary trusts' among interests that bind registered land without being noted on the register.
Proof of trust
The Appellants failed to prove that the Respondent's father held parcel 1680 in trust for his brothers; there was no demonstrated intention to create a trust.
Applying Re Estate of the late Jonathan Kinyua Waititu, trusts are implied only to give effect to the parties' intention. The brothers Thomas Ongaro and Agostino Morande were never registered and did not seek subdivision or dissolution; no explanation was given why they could not have been registered as joint owners. The burden under section 107 of the Evidence Act was not discharged.
Proof of fraud
Fraud was not proved to the required standard; the Respondent obtained title by transmission through a lawful grant of letters of administration.
Relying on Gichinga Kibutha v Carolyne Nduku, the court held that fraud must be distinctly pleaded and proved above a balance of probabilities. The Respondent was registered as administrator of his father's estate; the Appellants are not beneficiaries of that estate, the parcel was transferred to Bernard during Tagare Ongao's lifetime, and Tagare Ongao never complained of fraudulent transfer. The dismissal of the counterclaim was therefore unassailable.
Legal principles established
#- The Environment and Land Court has jurisdiction to hear and determine matters relating to interests in land based on trust; such matters need not be litigated in succession proceedings.
- Customary trust is an overriding interest under section 28 of the Land Registration Act.
- A party alleging a trust must plead and sufficiently demonstrate how the trust was created; fraud must be distinctly pleaded and proved to a standard above a balance of probabilities.
Court orders
#- 1.The appeal is dismissed
- 2.Costs to the Respondents
- On appeal from
- Chief Magistrate's Court at Kisii
- Kisii CMELC No. 16 "B" of 2018
- Jurisdiction invoked
- Environment and Land Court jurisdiction under Article 162(2) (Constitution) and the Environment and Land Court Act; jurisdiction to determine trusts in land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Monicah Thomas & 5 others v Henry Nyakoe Kasora [2020] KEELC 1155 (KLR)", Case Analysis (2020). Kisii Environment and Land Case (Appeal) - appeal from Kisii CMELC No. 16 "B" of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1155/eng@2020-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.