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ELCPartially Allowednot_stated_in_judgment· [2020] KEELC 1979 (KLR)

Gitari Kariuki & another v David Mwangi Kathendu [2020] KEELC 1979 (KLR)

Environment and Land Court
29 May 2020
4,902 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The plaintiffs sued for an order compelling the defendant to transfer land parcels KABARE/GACHIGI/719 and 720 to them, alleging that the original defendant, Kathendu Kagwa, had been registered during the 1958 land demarcation and consolidation as trustee of family land for the family of Kagwa, including the family of his elder brother Kariuki Kagwa. The defendant, substituted for his deceased parents, denied the trust, contending that his father was allocated the land by the clan outright, that an elder brother cannot hold land in trust for a younger one, and counter-claimed for the plaintiffs' eviction. The court found the testimony of PW3, a former clan allocation committee secretary, credible and unchallenged, and dismissed the defendant's own evidence as hearsay drawn from his deceased mother's untested statement. Applying Kanyi v Muthiora and related authority, the court held that registration did not extinguish the customary trust, which transformed into a trust recognised by the Registered Land Act. It held that parcel 357 was trust land and that three resultant parcels (717, 719 and 720) remained subject to it. The claim partially succeeded: parcel 719 was ordered registered in the name of Kariuki Kagwa (deceased), while parcels 717 and 720 were to remain in the name of Kathendu Kagwa (deceased). The counter-claim was dismissed, and in view of the close family relationship each party was ordered to bear their own costs.

Key legal issues

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01

Existence of a customary trust over land parcel KABARE/GACHIGI/357

Holding

A customary trust was established; Kathendu Kagwa held the resultant parcels in trust for himself and the family of his elder brother Kariuki Kagwa

Reasoning

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.

p. 5
02

Whether an elder brother may hold land in trust for a younger brother

Holding

Customary trust is not confined to the elder son; a younger sibling registered as proprietor may hold as trustee where circumstances show that intention

Reasoning

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.

p. 4
03

The defendant's counter-claim for eviction

Holding

The counter-claim was dismissed for want of proof

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.The suit land parcels No. KABARE/GACHIGI/717 and 720 to remain in the name of Kathendu Kagwa (deceased)
  3. 3.The defendant's counter-claim is hereby dismissed
  4. 4.Each party to bear his own costs

Authorities

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Legislation

  • Land Registration ActSections 24 and 25
  • Registered Land Act (Cap. 300)Sections 28, 30 and 126(1)

Cases cited (6)

  • Mbui Mukangu Vs Gerald Mutwiri Mbui
    Nyeri Court of Appeal No. 281 of 2000
  • Zacharia Orwa Ondoro Vs South Nyanza Sugar Co. Ltd
    (2018) e K.L.R
  • Independent Electoral and Boundaries Commission & another Vs Stephen Mutinda Mule & 3 others
    (2014) e K.L.R
  • Prisila Jesondin Chumo Vs Nelly Jebor
    (2018) e K.L.R
  • Peter Gitonga vs Francis Maingi M'Ikiara
    HCCC No. 146 of 2000 (Meru) unreported
  • Kanyi vs Muthiora
    (1984) K.L.R 712
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land held under customary trust

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, "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.