Ishmael Kegode Havi & another v Dan Amena Atinga [2022] KEELC 275 (KLR)
The bottom line
#The Vihiga Environment and Land Court ruled that registered family land can still be subject to an unrecorded customary trust, and ordered subdivision.
What this practically means
#Executive summary
#Key legal issues
#Whether a customary trust existed over the registered suit land in favour of the Plaintiffs
A customary trust exists in favour of the Plaintiffs; the deceased held the suit land in trust for himself, the 1st Plaintiff and Charles Odongo in equal shares
Applying the five elements set out by the Supreme Court in Isack M'inanga Kiebia, the court found the land was family land of Shadrack Havi, the Plaintiffs belong to that family and their relationship is not remote, and but for the deceased registering himself during adjudication while serving as chief and while the Plaintiffs were away at Lugari, they would have been registered. Physical boundaries, occupation and the Defendant's own admission corroborated the shares.
Whether the registered title defeats the customary trust
No - although registered in the name of the deceased or the Defendant, the land is subject to the customary trust as an overriding interest under section 28 of the Land Registration Act
The court held that the trust subsists without being noted on the register, so registration does not extinguish it. Consequently, the Defendant as personal representative, having transmitted the land into his name pending confirmation of grant, is bound to distribute the estate according to beneficial interests under section 83(f) of the Law of Succession Act and to transfer the Plaintiffs' shares.
Whether the Defendant should subdivide the land and transfer shares to the Plaintiffs
Yes - the Defendant was ordered to subdivide the suit land into three equal portions per the ground demarcations and transfer a portion to each beneficiary, executing all necessary documents, with the Deputy Registrar to execute in default
Since the trust was established and the Defendant is the personal representative in the process of transmitting the land through succession, the court found he ought to distribute the estate and transfer the respective shares, and granted the consequential orders of subdivision, transfer and execution of documents.
Legal principles established
#- A customary trust is an overriding interest to which all registered land is subject under section 28(b) of the Land Registration Act
- An administrator of an estate is obliged to distribute assets according to the beneficial interests therein
- Costs follow the event under section 27 of the Civil Procedure Act
Court orders
#- 1.A declaration that a customary trust exists in favour of the 1st Plaintiff, Charles Odongo-deceased and the Johan Atinga Shadrack-deceased over the suit land
- 2.A declaration that Johan Atinga Shadrack-deceased held the suit land in trust for himself, the 1st Plaintiff and Charles Odongo deceased in equal shares under a customary trust
- 3.The Defendant as the Administrator of the Estate of Johan Atinga Shadrack to sub-divide the suit land into three equal portions as per the demarcations on the ground and transfer a portion to each of the beneficiaries forthwith
- 4.The Defendant to execute all documents necessary so as to effect the subdivision and transfer of the suit land and in default the Deputy Registrar of the Court to execute the requisite documents in place of the Defendant
- 5.Costs of the suit are awarded to the Plaintiffs
- Jurisdiction invoked
- Originating Summons pursuant to Sections 1A, 1B and 3A Civil Procedure Act and Order 37 Rules 1, 7 and 14 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ishmael Kegode Havi & another v Dan Amena Atinga [2022] KEELC 275 (KLR)", Case Analysis (2022). ELC No. 28 of 2021 (O.S) (Formerly Kakamega ELC No. 90 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/275/eng@2022-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.