Maritim Cheruiyot Joseah & another v Billy Kipkoror Maritim & another [2020] KEELC 3386 (KLR)
The bottom line
#A title deed does not defeat family claims in Kenya: registered owners must transfer 4 acres where their relatives' homesteads stand under customary trust.
What this practically means
#Executive summary
#Key legal issues
#Who is the lawful proprietor of the suit property
The plaintiffs are the registered proprietors, but their title is not absolute; it is subject to the defendants' overriding interests
Registration in the plaintiffs' names in 2001 during the deceased's lifetime was proved. The defendants' allegation of fraud to defeat creditors was neither particularised nor proved, so the title stood as prima facie evidence of ownership. However, section 25(2) and section 28 of the Land Registration Act preserve trusts, and the evidence showed family land with the defendants' homesteads and their mother's grave on it, qualifying as a customary trust overriding the title.
Whether the plaintiffs hold the suit property in trust for the defendants
Yes - the plaintiffs hold 4 acres in trust for the defendants under a customary trust
Applying the Kiebia criteria, the land was family land, the defendants belong to the family, were born and raised on it, built their houses there and buried their mother there. The deceased sold most of parcel 73 during his lifetime and the family sold the last acre for his burial on an understanding the defendants would be compensated from the suit property. The deceased's conduct showed he did not intend to exclude the defendants.
Whether the defendants have trespassed upon the suit property
No - the defendants' occupation is protected by their overriding trust interest
The defendants were born on the land, have houses there, and their mother was buried there. The 1st plaintiff was instructed by the deceased not to build on the suit property. Their occupation flows from a customary trust, not trespass.
Legal principles established
#- A certificate of title is prima facie evidence of absolute ownership, but registration does not relieve a proprietor of trustee duties
- Customary trusts are overriding interests under section 28 of the Land Registration Act and need not be noted on the register
- Whether a customary trust exists depends on the nature of the holding and the intention of the parties, applying the Kiebia elements
Court orders
#- 1.A declaration that the plaintiffs hold land parcel no. KERICHO/CHEBUNYO/71 subject to the overriding interest of the defendants
- 2.The defendants are entitled to 4 acres out of land parcel no. KERICHO/CHEBUNYO/71 where their homesteads stand
- 3.The plaintiffs shall transfer 4 acres of the suit property to the defendants jointly and severally, failing which the Deputy Registrar of the court shall sign the necessary forms to effect the transfer
- 4.Each party to bear their own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land parcel KERICHO/CHEBUNYO/71
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maritim Cheruiyot Joseah & another v Billy Kipkoror Maritim & another [2020] KEELC 3386 (KLR)", Case Analysis (2020). Kericho ELC Civil Suit (Plaint dated 3rd February 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3386/eng@2020-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.