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ELCAllowedELC No. 28 of 2021 (O.S) (Formerly Kakamega ELC No. 90 of 2018)· [2022] KEELC 275 (KLR)

Ishmael Kegode Havi & another v Dan Amena Atinga [2022] KEELC 275 (KLR)

Environment and Land Court
28 April 2022
3,428 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiffs, son and grandson (as administrator of his father Charles Odongo's estate) of original owner Shadrack Havi, brought an Originating Summons under Order 37 of the Civil Procedure Rules claiming portions of land parcel Kakamega/Kegoye/1095 on the basis of a customary trust. They contended that the original owner shared the land equally among his three sons, that boundaries placed at the time still exist, and that during adjudication the land was registered in the name of the eldest brother, Johan Atinga Shadrack (deceased), in trust for all three in equal shares. The Defendant, administrator of the deceased's estate, denied the trust, asserting the brothers surrendered their shares in exchange for land at Lugari Scheme, and relied on the indefeasibility of title under the Land Registration Act and the 45-year delay in bringing the claim. Applying the Supreme Court's five-element test in Isack M'inanga Kiebia vs Isaaya Theuri M'linturi, the court found the elements satisfied: the land was family land, the Plaintiffs belong to the family, and but for the deceased registering himself during adjudication while he was area chief and the Plaintiffs were away, they would have been registered. The Defendant's own admission that the brothers had shares on the land undermined his surrender defence. The court held that the customary trust is an overriding interest under section 28 of the Land Registration Act binding on the registered title, and that as administrator the Defendant must distribute the estate according to beneficial interests. The court entered judgment for the Plaintiffs, declaring the customary trust, ordering subdivision into three equal portions per the ground demarcations, transfer to each beneficiary, execution of documents (with the Deputy Registrar to execute in default), and awarded costs to the Plaintiffs.

Key legal issues

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01

Whether a customary trust existed over the registered suit land in favour of the Plaintiffs

Holding

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

Reasoning

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.

p. 4
02

Whether the registered title defeats the customary trust

Holding

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

Reasoning

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.

p. 4
03

Whether the Defendant should subdivide the land and transfer shares to the Plaintiffs

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 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. 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. 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. 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

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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, "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.