Kimuhu Kimando Kangara v Kangara Kimando [2020] KEELC 1947 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a customary trust claim over family land but ordered a goodwill transfer of 0.2 acres.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendant held the suit properties in customary trust (Uramati) for the plaintiff
No customary trust was established; the plaintiff, born nine years after Kimando Kangara's death and after registration of the original parcel, was not among the heirs on whose behalf the defendant held the land in trust.
The court accepted that ancestral land registered in the name of the eldest son under Kikuyu custom carries an inherent notion of trust, and that such trust is enforceable despite first registration. However, the trust benefited the heirs of Kimando Kangara in the mother's house. The plaintiff was not a child of Kimando Kangara and was born after the registration, so he could not be a beneficiary of the customary trust. The plaintiff failed to discharge the onus of proving the trust.
Whether the plaintiff was entitled to the reliefs sought in the plaint
The plaintiff was not entitled to the reliefs sought since the customary trust on which the claim was founded was not proved on a balance of probabilities.
The claim rested wholly on customary trust. Having found that the trust was not established, the court held the claim unproved on a balance of probabilities. The court nevertheless, on an ex gratia basis and to avoid evicting the plaintiff who occupied one of the parcels, directed the defendant to transfer 0.2 acres to him as he had offered at trial, conditional on the plaintiff not challenging the judgment.
Who should bear the costs of the suit
Costs follow the event; the plaintiff was to pay the defendant's costs despite the parties being relatives, because of the plaintiff's history of repeated suits against the defendant over the same subject matter.
The general rule is that costs follow the event, and no reason justified departing from it. Although the parties are relatives and the court would ordinarily have ordered each party to bear its own costs, the record showed this was not the first suit the plaintiff brought against the defendant over the same subject matter, warranting an order that the plaintiff pay the costs.
Legal principles established
#- The existence of a trust must be pleaded and proved by evidence; the court will not imply a trust except in case of absolute necessity.
- A first registration under the Registered Land Act was subject to any duty or obligation owed as trustee; rights of a proprietor are not absolute.
- A person cannot be a trustee for a person who was not born and was not among the heirs at the time of registration.
Court orders
#- 1.The plaintiff's suit is dismissed with costs to the defendant
- 2.On an ex gratia basis, the defendant shall transfer to the plaintiff, at the plaintiff's own cost, within sixty (60) days from the date of the judgment, a portion of land measuring 0.2 acres from Kiambaa/Kanunga/920, Kiambaa/Kanunga/921 and Kiambaa/Kanunga/1483 or from any one of them, taking into consideration the location of the plaintiff's residence
- 3.The defendant shall not be obliged to effect the ex gratia transfer if the plaintiff is dissatisfied with the judgment and opts to challenge it
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a land dispute (trust claim over registered land)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimuhu Kimando Kangara v Kangara Kimando [2020] KEELC 1947 (KLR)", Case Analysis (2020). Not stated in the extract (Environment and Land Court suit filed 5th November 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1947/eng@2020-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.