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ELCPartially AllowedNot stated in the judgment (plaint dated 28th April 2016)· [2021] KEELC 3791 (KLR)

Loise Kanyokora Warui & another v Gladys Njeri Muriuki [2021] KEELC 3791 (KLR)

Environment and Land Court
12 March 2021
2,350 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that land registered in one family member's name can still legally belong to the wider family under customary trust.

What this practically means

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Executive summary

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In a first-instance land claim filed by plaint dated 28th April 2016, the plaintiffs - the second wife of the late Kennedy Warui Kabutu and one of her daughters - sought a declaration that the defendant, widow of Kennedy Warui's only son Christopher Muriuki Warui, held the suit land in trust for the family, plus determination of the trust and registration of the remaining subdivisions in their names. The suit land was originally clan land given in 1961, registered in the name of the son (then unborn or a minor) so that Kennedy Warui would not lose his National Irrigation Board rice holding, and was later exchanged for the parcel occupied by both houses of the family. The defendant contended her late husband received the exchanged land as absolute owner, completed the exchange after his death, and that the plaintiffs lived on the land only as licencees. The court identified three issues: existence of trust, appropriate orders, and costs. Applying the Supreme Court's M'Inanga criteria for customary trust and section 28(b) of the Land Registration Act, the judge found the plaintiffs' corroborated testimony credible and the defendant's evidence uncorroborated hearsay, concluding the land was registered in the son's name to hold in trust for the entire family, evidenced by the family's settlement on and burials in the land. Judgment was entered for the plaintiffs: a declaration of trust, an order for determination of the trust and registration of the five remaining subdivisions in the plaintiffs' names, and each party to bear her own costs given the close family relationship. Note the apparent typographical error referring to parcel 205 in the declaration order.

Key legal issues

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01

Whether the plaintiffs established a customary trust over the suit land

Holding

The court found a customary trust established, applying the M'Inanga elements: the land was clan land, the claimants belong to the family, and the land was registered in the son's name to hold for the whole family, evidenced by the family settling on and burying their dead on the land

Reasoning

The court held that proof of trust is a question of fact on the claimant. The 1st plaintiff and PW2 gave credible, corroborated evidence that the clan gave Kennedy Warui land registered in his son's name to protect his Irrigation Board rice holding, and that the son was to hold it for both houses. The defendant's contrary evidence was uncorroborated hearsay, and burial of the patriarch on the suit land confirmed the trust.

p. 3
02

What appropriate orders to issue

Holding

The plaintiffs proved their case on a balance of probabilities; judgment was entered for the plaintiffs with a declaration of trust and registration of the remaining subdivisions in their names

Reasoning

Having found the trust proved, the court found the claim merited and granted the declarations and orders sought, adapting the relief to the subdivided parcels, though the disposition order referred to parcel 205 rather than 208.

p. 3
03

Who will bear the costs of the suit

Holding

Although costs normally follow the event under section 27(1) of the Civil Procedure Act, the court ordered each party to bear her own costs because the parties are close family relations

Reasoning

The court exercised its discretion under section 27(1) of the Civil Procedure Act, which preserves the rule that costs follow the event unless the court orders otherwise for good reason, and found that fostering the family relationship justified departing from the general rule.

p. 3

Legal principles established

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  • The existence or otherwise of a trust is a matter of fact, and the burden of proving it lies on the person seeking the declaration
  • Registered land is subject to overriding interests including trusts and customary trusts under section 28(b) of the Land Registration Act
  • Where land is held for the benefit of other family members, a customary trust is presumed whether or not the beneficiaries are in possession

Court orders

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  1. 1.A declaration that the defendant held land parcel Number MWERUA/BARICHO/205, now sub-divided, in trust for herself and the plaintiffs
  2. 2.An order for determination of trust and registration of land parcel Numbers MWERUA/BARICHO/1408, 1412, 1413, 1416 and 1418 in the names of the plaintiffs
  3. 3.Each party to bear her own costs of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrders 3, 7 and 11
  • Land Registration ActNo. 3 of 2012, section 28(b)
  • Civil Procedure ActChapter 21 Laws of Kenya, section 27(1)

Cases cited (2)

  • Isack Kieba M'Inanga Vs Isaaya Theuri M'Lintari & Another
    SCOK No. 10 of 2015
  • Kiarie Vs Kinuthia
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (claim concerning title to and trusts over land)

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, "Loise Kanyokora Warui & another v Gladys Njeri Muriuki [2021] KEELC 3791 (KLR)", Case Analysis (2021). Not stated in the judgment (plaint dated 28th April 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3791/eng@2021-03-12

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