Maria Ndinda Nzoka & 8 others v Domitila Ndunge David & 2 others [2020] KEELC 1523 (KLR)
The bottom line
#A Kenyan court blocked the sale of family land, confirming that registered owners can still hold it in trust for relatives under customary law.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants established a prima facie case with a probability of success
The Plaintiffs established a prima facie case, including over the sub-divisions of the suit property, because their claim of customary trust against the registered family member was not rebutted.
The court applied the Giella v Cassman Brown principles. The 1st Plaintiff deponed that the family had lived on Machakos/Matuu/1225 since the 1960s and that the land was registered in the 2nd Defendant's name on behalf of the family. No evidence was adduced to show the land was not ancestral land. The customary trust doctrine under Section 28 of the Land Registration Act therefore rendered the claim non-frivolous.
Whether an interlocutory injunction should issue pending the hearing of the main suit
The injunction was granted as the main purpose of a temporary injunction is preservation of the suit property and maintenance of the status quo.
Having found a prima facie case, and given that the land is claimed as ancestral land which money cannot adequately compensate, the court exercised its discretion to preserve the suit property and maintain the status quo between the parties pending the disposal of the main suit, allowing the application as prayed.
Legal principles established
#- Customary trust is an overriding interest over registered ancestral or family land under Section 28 of the Land Registration Act.
- The elements that qualify a claimant as a beneficiary under a customary trust are as set out by the Supreme Court in Isack M'inanga Kiebia v Isaaya Theuri M'lintari.
- To prove a trust in land one need not be in actual physical possession and occupation of the land.
Court orders
#- 1.The Application dated 5th September, 2018 is allowed as prayed
- 2.Pending the hearing and determination of the suit, the Respondents, their agents and/or servants are restrained from alienating, disposing, transferring or interfering in any manner with Land Parcels numbers Machakos/Matuu/7516, 7518, 7823, 7824 and Matuu Town Plot No. 5
- Jurisdiction invoked
- Order 40 Rules 1 and 2 of the Civil Procedure Rules (injunction application in an original land suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maria Ndinda Nzoka & 8 others v Domitila Ndunge David & 2 others [2020] KEELC 1523 (KLR)", Case Analysis (2020). Not stated in the judgment (Notice of Motion dated 5th September, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1523/eng@2020-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.