Okwemba (Suing as Administrator of the Estate of Peter Omutola Okwemba - Deceased) v Osiako (Environment & Land Case 18 of 2021) [2021] KEELC 4741 (KLR)
The bottom line
#A Vihiga court ruled that long family occupation can create a customary trust over registered land, forcing the registered owner to transfer a share to the widow living there.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant holds a portion of the suit land in customary trust for the Plaintiff
Yes. The Defendant holds 0.31 ha of East Bunyore/Ebunangwe/1644 in customary trust for the Plaintiff as personal representative of her late husband's estate.
Although the land was registered in the Defendant's name in 1965, he never resided on it, while the Plaintiff and her late husband lived, developed and buried their dead on it for over 37 years. Evidence including minutes of an elders' meeting showed the deceased father had directed the suit land be shared between the Plaintiff's husband and Tom Omutola. Applying section 28 of the Land Registration Act and the Supreme Court's elements of customary trust, the court found all elements proved on a balance of probabilities.
Whether the Plaintiff proved her case on a balance of probabilities
Yes, having proved the customary trust.
The court found the trust claim proved on a balance of probabilities through the Plaintiff's long occupation, development of the land, burial of her husband and parents thereon, and the elders' meeting minutes, against the Defendant's unsubstantiated claims about a non-existent parcel 1615 and inconsistent testimony on who sold it.
Legal principles established
#- Customary trust is an overriding interest to which registered land is subject even without notation on the register.
- A customary trust must be proved by evidence showing the nature of the holding of the land and the intention of the parties.
- A customary trust, once proved, binds a registered proprietor even upon a first registration.
Court orders
#- 1.It is hereby declared a customary law trust exists over the suit land namely that the Defendant holds a portion measuring 0.31 ha of land parcel known as east bunyore/ebunangwe/1644 occupied by the Plaintiff on the ground in favour of the Plaintiff
- 2.The Defendant do subdivide land parcel known as east bunyore/ebunangwe/1644 and transfer a portion thereof measuring 0.31 hactares to the Plaintiff forthwith in default the Deputy Registrar of the Court to execute the requisite documents to effect subdivision and transfer.
- 3.Each party to bear own costs.
- Jurisdiction invoked
- Original civil suit on land title and customary trust under the Land Registration Act (Court's jurisdiction not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okwemba (Suing as Administrator of the Estate of Peter Omutola Okwemba - Deceased) v Osiako (Environment & Land Case 18 of 2021) [2021] KEELC 4741 (KLR)", Case Analysis (2021). Not stated in judgment (Plaint dated 8th November 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4741/eng@2021-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.