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ELCPartially AllowedCase No 213 of 2013· [2020] KEELC 1369 (KLR)

Noorfatma Mohamed Haji Abdulla & another v Aslam Mohamed Haji Abdulla [2020] KEELC 1369 (KLR)

Environment and Land Court
16 September 2020
4,210 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that land registered in one sibling's name can still belong to the whole family if a customary trust is proved.

What this practically means

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Executive summary

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By a plaint filed on 25th September 2013, thirteen siblings sued their brother, the Defendant, over Title No. Mombasa/Block XVII/1039, the family home registered in his sole name. The Plaintiffs pleaded that the property was owned by their father Mohamed Haji Abdulla Ebrahim and uncle Sidiq Haji Abdulla as tenants in common; the father's share passed to their mother Sairabanu as trustee, and the transfers of both half shares to the Defendant - Sidiq's in 1987 and Sairabanu's after her death in 1998 - were illegal, effected without beneficiaries' consent and in breach of the Registered Land Act and the Law of Succession Act. They sought declarations, rectification or, alternatively, a declaration of trust and a permanent injunction. The Defendant counterclaimed for eviction, asserting he purchased Sidiq's share and saved the property from auction by repaying a loan. After hearing the 1st Plaintiff and the Defendant, the court found that the Defendant produced no sale agreement, no proof of payment, and no documentation of the alleged loan, and that Sairabanu's transfer to him was without valuable consideration and by an administrator without court permission. Applying the principles on customary trust as an overriding interest, the court held that a customary trust exists over the suit land and that the Defendant holds the title in trust for himself and the 1st to 13th Plaintiffs. Judgment was entered for the Plaintiffs in terms of prayers (a), (b), (c) and (g); the counterclaim was dismissed; and, as a family dispute, each party was ordered to bear their own costs.

Key legal issues

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01

Legality of the transfer of Sairabanu's half share to the Defendant

Holding

The transfer was subject to the interests of the Plaintiffs; the Defendant holds the title in trust for himself and the 1st to 13th Plaintiffs.

Reasoning

Sairabanu held the deceased father's share as administrator and trustee, with the beneficiaries entitled to 1/14th shares per the confirmed grant. Section 90 of the Law of Succession Act barred disposal of estate property without court permission, and section 28 (proviso) of the Registered Land Act did not relieve a proprietor of trustee duties. No consent of the beneficiaries was proved, and siblings continued paying rates. The Defendant failed to prove consideration or that the transfer occurred during Sairabanu's lifetime.

p. 5
02

Legality of the transfer of Sidiq's half share to the Defendant

Holding

The Defendant failed to prove purchase of Sidiq's share; on Sidiq's death intestate his share fell to be administered as part of his estate under section 103(1) of the Registered Land Act.

Reasoning

The Defendant claimed he bought Sidiq's share for about Kshs.150,000 but produced no sale agreement, no proof of payment, and no transfer document; he admitted he did not know if Sidiq was paid. The burden of proof, having shifted to the Defendant, was not discharged. In the absence of evidence of purchase, section 103(1) applies, requiring the share to be administered as part of Sidiq's estate.

p. 4
03

Existence of a customary trust over the suit property

Holding

A customary trust exists in respect of the suit land; the Defendant's claim to exclusive rights is not founded in law.

Reasoning

The court applied the principle from Elijah Ouko Matagaro that customary trust must be pleaded, particularised and proved, and is an overriding interest on registered land. The chronology showed the property passed from grandfather to father and uncle, then to the mother as trustee for the children. The Defendant failed to displace the beneficiaries' unregistered interests, and no consent to the transfer was proved.

p. 4
04

Defendant's claim that he saved the property from auction by repaying a loan

Holding

The claim failed for want of proof; he who alleges must prove.

Reasoning

The Defendant alleged he repaid a loan of over Kshs.100,000 taken by his father to save the property from auction, but admitted he had no documentation of the loan or any agreement with his father, and no evidence of auctioneers. His mother's transfer to him was by way of love and affection, i.e. without valuable consideration, so he took subject to the transferor's unregistered interests.

p. 3

Legal principles established

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  • The existence or not of a customary trust is a matter of fact which must be pleaded, particularised and proved; customary trust is an overriding interest that may affect registered land although it does not appear in the register.
  • A proprietor who acquires land by transfer without valuable consideration holds it subject to any unregistered rights or interests subject to which the transferor held it.
  • A disposal of immovable property by an administrator without the previous permission of the granting court is voidable at the instance of any person interested in the property.

Court orders

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  1. 1.Judgment entered for the Plaintiffs in terms of prayers (a), (b), (c) and (g) of the plaint
  2. 2.The Defendant's counterclaim dismissed
  3. 3.Each party to bear their own costs of the suit and the counterclaim

Authorities

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Legislation

  • Registered Land Act (repealed)Section 103(1)
  • Registered Land Act Cap 300 (repealed)Proviso to section 28 and section 29
  • Registered Land Act (repealed)Sections 29 and 30
  • Land Registration ActSection 91
  • Land Registration ActSections 27 and 28
  • Law of Succession Act Cap 160Section 35 and section 35(5)
  • Law of Succession Act Cap 160Section 90(3) and (4)
  • Bankruptcy ActNot specified (referred to in quoted section 29)
  • Companies ActWinding-up provisions (referred to in quoted section 29)

Cases cited (2)

  • Elijah Ouko Matagaro & another v Roselyne Dola Ouko & 4 others
    [2017] eKLR
  • Richard Nyamemba Auka & 2 Others v Josephine Motarohi & 2 Others
Jurisdiction invoked
Original civil jurisdiction over a dispute concerning title to land (Title No. Mombasa/Block XVII/1039); no specific constitutional provision invoked

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, "Noorfatma Mohamed Haji Abdulla & another v Aslam Mohamed Haji Abdulla [2020] KEELC 1369 (KLR)", Case Analysis (2020). Case No 213 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1369/eng@2020-09-21

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