Alfred Karasha & another v Simeon Joseph Ole Karasha & 3 others [2021] KEELC 2951 (KLR)
The bottom line
#Kenya's land court ruled a father held family land in trust, entitling his son to four acres despite the title being in the father's name.
What this practically means
#Executive summary
#Key legal issues
#Whether a customary trust arose over Ngong/Ngong/506 in favour of the family of the late Serah Karasha
Yes - the 1st Defendant held the parcel and its resultant subdivisions in trust for the family of the late Serah Karasha and her children
Applying the Supreme Court's criteria in Isack M'Inanga Kieba, the court found the land was family land allocated to the 1st Defendant and his wife by elders, registered in his name; the Plaintiff is a son of that family; the land was not purchased by the Defendant; family members including Serah and some children are buried there; the Plaintiff occupied four acres without objection. The Defendant's own admission that each child is entitled to land from their mother supported a customary trust under Section 28(b) of the Land Registration Act.
Whether the Plaintiff is entitled to the orders sought in the Plaint
Partially - the court granted declarations of trust and entitlement to four acres and ordered transfer, rather than the injunctive relief sought
The Defendant subdivided the land during the suit contrary to a court order; the 2nd and 3rd Defendants did not testify. The court found contempt but, as mutations were already registered and the Plaintiff occupied only four acres, it directed transfer of those four acres instead of the broad injunctions claimed.
Whether the 1st Defendant is entitled to the orders in the Counterclaim
No - the Counterclaim was dismissed in its entirety
Because a customary trust was established, the Plaintiff was not a trespasser; the court declined eviction, mandatory injunction, vacant possession, OCS assistance, removal of structures and damages, which were not proved.
Whether subdivision in defiance of a court order constituted contempt
Yes - the Defendants were in contempt for continuing to deal with the suit land despite the order of 9th October 2014
The 1st Defendant admitted subdividing during the pendency of the suit contrary to the order; the 2nd and 3rd Defendants failed to testify to confirm their defence; the court found them in contempt though it did not impose sanctions.
Legal principles established
#- Customary trust is an overriding interest in land which need not be registered on the register
- Not every claim of a right to land qualifies as a customary trust; the nature of the holding and intention of the parties are essential, per the elements set out in Isack M'Inanga Kieba v Isaaya Theuri M'Lintari
Court orders
#- 1.A declaration that SIMEON JOSEPH OLE KARASHA held the land parcel NGONG/NGONG/506 and its resultant subdivisions therefrom in trust for the late SERAH KARASHA and her family
- 2.A declaration that the 1st Plaintiff is entitled to four acres which he occupies in land parcel number NGONG/NGONG/506 and its resultant subdivisions
- 3.The 1st Defendant to transfer four acres of land within NGONG/NGONG/506 and its resultant subdivisions to the 1st Plaintiff within ninety (90) days, failing which the Deputy Registrar, Kajiado ELC may execute the transfer forms
- 4.Each party to bear their own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) framework; court not stated expressly in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alfred Karasha & another v Simeon Joseph Ole Karasha & 3 others [2021] KEELC 2951 (KLR)", Case Analysis (2021). ELC Case No. 937 of 2017 (formerly Machakos ELC Case No. 108 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2951/eng@2021-06-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.