Simon Ngure Murathi v Pauline Wanjue Murathi & another [2021] KEELC 1120 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the suit lands are held in trust for the Applicant and not part of the deceased's estate
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
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.
Whether the Applicant, having attained majority, is entitled to compel the trustees to transfer the suit lands
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
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.
Whether the suit lands form part of the free property of the estate of the late Stephen Murathi Muiruri in the pending succession cause
No - property held in trust is not free property of the deceased and is unavailable for distribution
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.
Legal principles established
#- 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
#- 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.In default of execution by the 2nd Respondent, the Deputy Registrar of the Court is authorized to execute the transfers
- 3.Each party to meet their costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; Sections 3, 13 & 19 of the ELC Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.