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ELCPartially AllowedNot stated in the judgment as provided· [2021] KEELC 1120 (KLR)

Simon Ngure Murathi v Pauline Wanjue Murathi & another [2021] KEELC 1120 (KLR)

Environment and Land Court
4 November 2021
3,107 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court confirmed that land registered in a trustee's name for a child belongs to that child once they turn 18, not to the deceased's estate.

What this practically means

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Executive summary

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The Applicant, now an adult, moved the Environment and Land Court at Thika under Article 162(2)(b) of the Constitution, the ELC Act, the Land Registration Act and the Civil Procedure Act seeking orders compelling the 2nd Respondent to execute Form LRA 52 transferring land parcels Kiambaa/Ruaka/3657 and 3658 to him, with the Deputy Registrar to execute in default. The parcels were registered on 25/1/2010 in the names of the Applicant's late father, Stephen Murathi Muiruri, and the two Respondents as trustees for the Applicant, who was then a minor. The 1st Respondent supported the application and had executed the transfer. The 2nd Respondent opposed, contending the parcels formed part of her late husband's estate in a pending succession cause at Kiambu, alleging the titles were lost, and questioning the Applicant's name discrepancy. The court held that the express trust on the face of the titles was unrebutted; property held in trust is not free property of a deceased estate under Section 3 of the Law of Succession Act; and the trust extinguished when the Applicant turned 18, obliging the surviving trustees to transfer the land. Allowing the application, the court ordered the 2nd Respondent to execute the transfers within 14 days, failing which the Deputy Registrar would do so, but denied the Applicant costs for failing to serve a written demand, directing each party to bear their own costs.

Key legal issues

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01

Whether the suit lands are held in trust for the Applicant and not part of the deceased's estate

Holding

Yes - the titles on record show registration of the parcels in the names of the Respondents and the deceased as trustees for the Applicant; the 2nd Respondent adduced no evidence to rebut this

Reasoning

The titles registered on 25/1/2010 expressly describe the registered proprietors as trustees for Simon Ngure Murathi. The Applicant traced the root of title from parcel 884 through various transfers to the 1998 trust registration. The 2nd Respondent alleged the land belonged to the deceased's estate but produced no evidence to challenge the titles or the trust. Under Section 26 of the LRA, titles are prima facie evidence of ownership, impugnable only by proof of fraud or illegality, none of which was established.

p. 3
02

Whether the Applicant, having attained majority, is entitled to compel the trustees to transfer the suit lands

Holding

Yes - the trust extinguished on the Applicant attaining 18 years, and the surviving trustees are obligated under Sections 65 and 66 of the LRA and Rule 66 of the Land Registration General Regulations to execute the transfer

Reasoning

Section 27 of the Land Act allows a child to hold title through a trustee. Section 66(1) of the LRA contemplates registration of trustees 'as trustee', and Rule 66 prescribes Form LRA 52 for transfers by trustees. The Applicant was born in 1993 and was 27 at filing. The 1st Respondent had already executed the transfer; the 2nd Respondent's refusal was unjustified. The court invoked its power to have the Deputy Registrar execute in default.

p. 4
03

Whether the suit lands form part of the free property of the estate of the late Stephen Murathi Muiruri in the pending succession cause

Holding

No - property held in trust is not free property of the deceased and is unavailable for distribution

Reasoning

Section 3 of the Law of Succession Act defines free property as that which the deceased was legally competent freely to dispose of during his lifetime. Having divested his interest by registering the land in trust in 1998, the deceased held only fiduciary capacity, which terminated on death, leaving the surviving trustees. The listing of parcel 3657 in the succession cause did not alter the legal position absent an instrument showing registration in the deceased's name.

p. 3

Legal principles established

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  • Property held in trust for another does not form part of the deceased's free estate available for distribution on succession
  • The existence of a trust is a question of fact to be proven on a balance of probabilities by evidence
  • A trust in favour of a minor is extinguished upon the beneficiary attaining the age of 18 years, whereupon the trustees are obligated to transfer the land to the beneficiary

Court orders

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  1. 1.The 2nd Respondent to execute the necessary transfers (Form LRA 52) for land parcels Kiambaa/Ruaka/3657 & 3658 in favour of the Applicant within 14 days
  2. 2.In default of execution by the 2nd Respondent, the Deputy Registrar of the Court is authorized to execute the transfers
  3. 3.Each party to meet their costs

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSections 3, 13 & 19
  • Land Registration ActSections 26, 28(b), 65, 66, 67
  • Land Registration Regulations 2017Rule 66
  • Civil Procedure ActSections 1A, 1B, 3A & 98
  • Civil Procedure RulesOrder 51
  • Law of Succession Act Cap 160Section 3
  • Definition of trust; Parts II and III
  • Land ActSections 27 & 54
  • Registered Land ActSection 26(a) and (b)
  • Land Registration General RegulationsRule 66, Form LRA 52, Sixth Schedule

Cases cited (3)

  • Gatimu Kinguru vs. Muya Gathangi
    (1976) KLR 253
  • Twalib Hatayan & another vs. Said Saggar Ahmed Al-Heidy & 5 others
    [2015] eKLR
  • Juletabi African Adventure Limited & another vs. Christopher Michael Lockley
    [2017] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Sections 3, 13 & 19 of the ELC Act

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, "Simon Ngure Murathi v Pauline Wanjue Murathi & another [2021] KEELC 1120 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1120/eng@2021-11-04

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