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ELCAllowedELC Case No. 110 of 2018· [2020] KEELC 2664 (KLR)

Joshua Kyalo Nthakyo & 4 others v Joseph Masai Muumbi [2020] KEELC 2664 (KLR)

Environment and Land Court
29 April 2020
788 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that land registered in one family member's name can be held in trust for others, and ordered the transfer to proceed anyway.

What this practically means

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Executive summary

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This was an undefended suit before the Environment and Land Court at Makueni. Five Plaintiffs sued the Defendant, the registered owner of land parcel number Mbitini/Kyemundu/770, seeking an order compelling him to join them in obtaining land control consent and to transfer the plot to the 1st Plaintiff after paying stamp duty at the County Land Registry Makueni. The Plaintiffs pleaded that on 3rd July 2018 the Defendant agreed to surrender his trust and transfer the plot to the 1st Plaintiff, signed a transfer application form and search form, and jointly fixed a consent hearing date at Matiliku, but then failed to attend, causing the Plaintiffs to wait in vain. Though served, the Defendant neither entered appearance nor filed a defence, and the suit proceeded undefended. The 3rd and 1st Plaintiffs testified that the Defendant was registered to hold the land in trust because the other Plaintiffs were not near, and produced the transfer document dated 3rd July 2018 and the title. Counsel for the Plaintiffs submitted that the executed transfer amounted to a contract and an instrument of transfer under section 37 of the Land Registration Act and that the Defendant's failure to obtain consent was a breach. The court found the evidence uncontroverted, held that the Plaintiffs had established customary trust and a cause of action on a balance of probabilities, and entered judgment directing the Defendant to join the Plaintiffs in obtaining consent and transfer the land, with the Deputy Registrar authorized to sign the transfer forms if he declined, plus costs to the Plaintiffs.

Key legal issues

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01

Whether a customary trust was established over land parcel Mbitini/Kyemundu/770

Holding

The court found that the Defendant held the suit land in trust for the Plaintiffs and had agreed to transfer it to the 1st Plaintiff, and that the Plaintiffs established the customary trust.

Reasoning

The suit proceeded undefended after the Defendant failed to enter appearance or file a defence despite service. The 3rd Plaintiff testified that the Defendant was registered to hold the land in trust because the other Plaintiffs were not near. The Defendant also signed a transfer document and land control board consent application on 3rd July 2018, then failed to attend the consent hearing. This evidence stood uncontroverted, satisfying the balance of probabilities standard.

p. 2
02

Whether the executed transfer document amounted to a binding contract enforceable against the Defendant

Holding

The executed transfer constituted a contract and an instrument of transfer under section 37 of the Land Registration Act, and the Defendant's failure to apply for consent was a breach.

Reasoning

Counsel for the Plaintiffs submitted, without contradiction, that the Defendant signed the transfer forms in the presence of a lawyer; that the executed transfer amounted to a contract and an instrument of transfer under section 37 of the Land Registration Act; and that the failure to attend the land control board consent hearing was a breach of that contract. The court accepted these submissions and granted judgment as prayed.

p. 1

Legal principles established

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  • A registered owner may be found to hold land in trust for family members under customary trust, and an executed transfer agreement creates enforceable obligations.
  • Uncontroverted evidence in an undefended suit is sufficient to establish a claim on a balance of probabilities.

Court orders

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  1. 1.An order directing the Defendant to join the Plaintiffs in obtaining consent to transfer land parcel number Mbitini/Kyemundu/770 and thereafter transfer the same after paying stamp duty at the County Land Registry Makueni
  2. 2.The Deputy Registrar of the court is authorized to sign the transfer forms in case the Defendant declines or is unable to do so
  3. 3.Costs of the suit are provided for
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) of the Constitution; Environment and Land Court Act) — as inferred from the court's forum; no specific provision is cited in the judgment

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, "Joshua Kyalo Nthakyo & 4 others v Joseph Masai Muumbi [2020] KEELC 2664 (KLR)", Case Analysis (2020). ELC Case No. 110 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2664/eng@2020-04-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.