Noorfatma Mohamed Haji Abdulla & another v Aslam Mohamed Haji Abdulla [2020] KEELC 1369 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Legality of the transfer of Sairabanu's half share to the Defendant
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.
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.
Legality of the transfer of Sidiq's half share to the Defendant
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.
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.
Existence of a customary trust over the suit property
A customary trust exists in respect of the suit land; the Defendant's claim to exclusive rights is not founded in law.
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.
Defendant's claim that he saved the property from auction by repaying a loan
The claim failed for want of proof; he who alleges must prove.
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.
Legal principles established
#- 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
#- 1.Judgment entered for the Plaintiffs in terms of prayers (a), (b), (c) and (g) of the plaint
- 2.The Defendant's counterclaim dismissed
- 3.Each party to bear their own costs of the suit and the counterclaim
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.