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ELCDismissedOriginating Summons dated 18th May 2015· [2022] KEELC 805 (KLR)

Simon Kiama Ndiangui v Kamamia Ndiangui Kamamia [2022] KEELC 805 (KLR)

Environment and Land Court
17 March 2022
JOJ. O. Olola
3,138 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Nyeri Environment and Land Court dismissed a brother's claim to half of family land because he had no evidence proving a trust existed.

What this practically means

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Executive summary

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By an Originating Summons dated 18th May 2015, the Plaintiff, Simon Kiama Ndiangui, sought a declaration that his brother, the Defendant Kamamia Ndiangui Kamamia, holds the 98-acre parcel Nyeri/Watuka/734 in trust for himself and the Plaintiff, and an order for transfer of 54 acres to the Plaintiff. The Plaintiff alleged their late mother, Margaret Wangechi, bought the land from the Settlement Fund Trustees and had it registered in the Defendant's name as eldest son in trust for the family. The Defendant denied this, asserting that he personally balloted for and acquired the land as a former Bellevue Farm squatter, paid a deposit of Kshs.161 and repaid a Kshs.9,000 SFT loan, and only hosted his homeless mother and brother on the land. At trial each party called witnesses; the Defendant's former farm colleagues corroborated his acquisition of the land. The court framed one issue: whether the land was registered in the Defendant's name in trust for the Plaintiff. Applying Mbothu v Waitimu, the court held that trusts are never presumed and the burden lay on the Plaintiff, who conceded he had no documents proving his mother's payment or the trust. The title and Certificate of Search showed no trust on the register. The court also noted the earlier award of the Kieni West Land Disputes Tribunal in the Plaintiff's favour had been quashed by the High Court in judicial review for want of jurisdiction. Holding that the Plaintiff had failed to prove the trust, the court answered all questions in the negative, allowed only the Plaintiff's 1989 purchase of 5 acres, dismissed the suit and awarded costs to the Defendant. Judgment was delivered at Nyeri on 17th March 2022 by J. O. Olola, J.

Key legal issues

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Whether the suit property is held by the Defendant in trust for the Plaintiff

Holding

No trust was established; the Plaintiff failed to prove the alleged trust and the claim was dismissed

Reasoning

The court noted that trust is never presumed and the burden lay on the Plaintiff. The Plaintiff produced no documentary evidence that his mother paid the deposit or that registration in the Defendant's name was in trust. The title and search showed no trust on the register, while the Defendant's evidence, corroborated by neighbours, showed he personally acquired the land from the Settlement Fund Trustees by ballot, paid the deposit and loan, and obtained title in 2003.

p. 5

Legal principles established

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  • A trust is never implied nor presumed by the court except in cases of absolute necessity; the intention of the parties to create a trust must be clearly determined
  • The party asserting a trust bears the burden of proving its existence by evidence
  • Where a claim of trust exists, it ought to be indicated on the register or else proved by evidence

Court orders

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  1. 1.All the questions posed in the Originating Summons answered in the negative
  2. 2.The Originating Summons dated 18th May 2015 and filed on 19th May 2015 dismissed
  3. 3.Costs of the suit awarded to the Defendant

Authorities

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Cases cited (2)

  • Mbothu & Others -vs- Waitimu & 11 Others
    (1980) KLR 171
  • Kamamia Ndiangui Kamamia -vs- Kieni West Land Dispute Tribunal & 2 Others
    Judicial Review Case No. 25 of 2011
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over a claim of trust relating to registered land

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Simon Kiama Ndiangui v Kamamia Ndiangui Kamamia [2022] KEELC 805 (KLR)", Case Analysis (2022). Originating Summons dated 18th May 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/805/eng@2022-03-17

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