Gitari Kariuki & another v David Mwangi Kathendu [2020] KEELC 1979 (KLR)
The bottom line
#A Kenyan court confirmed that a title deed does not wipe out family customary land trusts, but families must prove the trust with solid evidence.
What this practically means
#Executive summary
#Key legal issues
#Existence of a customary trust over land parcel KABARE/GACHIGI/357
A customary trust was established; Kathendu Kagwa held the resultant parcels in trust for himself and the family of his elder brother Kariuki Kagwa
The court accepted the testimony of PW3, a former clan committee secretary, that the elder son Kariuki was working in Nairobi and proposed his younger brother Kathendu be registered as trustee. The defendant, born in 1958, relied on hearsay evidence from his deceased mother's untested statement. Registration did not extinguish the customary trust, which transformed into a trust recognised by the Registered Land Act.
Whether an elder brother may hold land in trust for a younger brother
Customary trust is not confined to the elder son; a younger sibling registered as proprietor may hold as trustee where circumstances show that intention
The defendant argued that under customary trust only an elder brother holds for a younger one. The court found no authority relieving a younger male sibling registered as proprietor of clan land from trustee obligations, and relied on Kanyi v Muthiora that registration does not relieve a proprietor of duties as trustee under customary law.
The defendant's counter-claim for eviction
The counter-claim was dismissed for want of proof
The defendant, the only defence witness, laid no basis for the counter-claim, called no witness in support of it, and made no reference to his list of documents. The authorities cited by his counsel were found distinguishable.
Legal principles established
#- Registration of land in a proprietor's name does not extinguish customary law trust rights; the registered proprietor remains subject to the duties of a trustee under customary law
- Whether a customary trust exists is a matter of evidence, not something discernible from the title or register, and the burden of proof lies on the party asserting it
Court orders
#- 1.The suit land parcels No. KABARE/GACHIGI/719 to be registered in the name of Kariuki Kagwa (deceased) currently under the occupation of the plaintiffs
- 2.The suit land parcels No. KABARE/GACHIGI/717 and 720 to remain in the name of Kathendu Kagwa (deceased)
- 3.The defendant's counter-claim is hereby dismissed
- 4.Each party to bear his own costs
- Jurisdiction invoked
- Environment and Land Court jurisdiction over disputes relating to land held under customary trust
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gitari Kariuki & another v David Mwangi Kathendu [2020] KEELC 1979 (KLR)", Case Analysis (2020). not_stated_in_judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1979/eng@2020-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.