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ELCPartially AllowedNot stated in judgment· [2021] KEELC 2550 (KLR)

Stanley Muriithi Kabuba v Joseph Kithanga [2021] KEELC 2550 (KLR)

Environment and Land Court
15 June 2021
ECE.C. Cherono
1,827 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 ruled that family land held in one person's name can still belong to relatives through customary trust, even without anything written on the title.

What this practically means

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Executive summary

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The plaintiff sued his elder brother, the registered proprietor of Land Parcel No. Mwerua/Kithumbu/148 (since subdivided into 2825 and 2826), seeking a declaration that the defendant holds one acre in trust for him, or alternatively one acre by adverse possession. The plaintiff testified that the clan gave the land during demarcation and consolidation in 1961 to the defendant as eldest son to hold in trust for the family of Kabuba Kigoto, their father, who was absent and whose wife could not be registered under the prevailing practice. The plaintiff occupies a portion, has built a permanent house, and faced pressure to vacate after a Land Disputes Tribunal award in his favour was overturned on appeal to the Provincial Land Disputes Committee. The defendant admitted the plaintiff's occupation since 1997 but claimed the land was his absolutely and that the plaintiff had other land. The court framed a single issue: whether a trust was established. Applying Sections 25(1) and 28 of the Land Registration Act, under which customary trust is an overriding interest, and the Supreme Court's elements of customary trust in Isack M'Inanga Kebia, the court found the plaintiff's uncontroverted evidence established a customary trust. Judgment was entered for the plaintiff: a declaration of trust, cancellation of the subdivision, rectification of the register, and subdivision allocating the plaintiff one acre. Each party was ordered to bear his own costs given the close family relations, and the O.C.S Kerugoya was to supervise enforcement.

Key legal issues

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01

Whether the defendant holds the suit land in trust for the plaintiff under customary trust

Holding

The court found a customary trust in favour of the plaintiff, satisfying the Supreme Court's principles in Isack M'Inanga Kebia

Reasoning

The court found the plaintiff's sworn evidence uncontroverted: the clan gave the land during demarcation and it was registered in the defendant's name, the eldest son, to hold in trust for the family of Kabuba Kigoto because the father was absent and women could not register. The plaintiff occupies the land with his family. These facts satisfied the elements of customary trust as an overriding interest under Sections 25 and 28 of the Land Registration Act.

p. 3

Legal principles established

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  • Customary trust is an overriding interest on registered land that need not be noted on the register
  • A trust claim is assessed against the elements of customary trust set out by the Supreme Court, each case on its own merits

Court orders

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  1. 1.A declaration that the defendant holds Land Parcel No. MWERUA/KITHUMBU/148 (now sub-divided) in trust for himself and the plaintiff
  2. 2.Cancellation of the subdivision of land parcels No. MWERUA/KITHUMBU/2825 and 2826 as unlawful and illegal
  3. 3.The Land Registrar Kirinyaga to rectify the register reverting to the original title number MWERUA/KITHUMBU/148
  4. 4.Subdivision of MWERUA/KITHUMBU/148 into two portions: one acre registered in favour of the plaintiff and the rest in the name of the defendant
  5. 5.The District Land Surveyor Kirinyaga County to prepare mutation forms and conduct the survey for the subdivision
  6. 6.Each party to bear his own costs
  7. 7.The O.C.S Kerugoya Police Station to supervise the enforcement of the order

Authorities

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Legislation

  • Land Registration ActSection 25(1)
  • Land Registration ActSection 28
  • Civil Procedure RulesOrders 3, 7 & 11

Cases cited (2)

  • Isack M' Inanga Kebia Vs Isaaya Theuri M' Lintari & Isack Ntongai M' Lintari
    SOK Petition 10 of 2015
  • Kiarie Vs Kinuthia
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes

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, "Stanley Muriithi Kabuba v Joseph Kithanga [2021] KEELC 2550 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2550/eng@2021-06-15

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