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ELCPartially AllowedMakueni ELC Suit (Plaint dated 4th October 2017) - number not stated in judgment· [2022] KEELC 923 (KLR)

Samson Mbindi Kivindyo (Substituted as the Plaintiff in place of Simon Kibindyo Kituku -Deceased) v Duncan Kivindyo Kanyele & 5 others [2022] KEELC 923 (KLR)

Environment and Land Court
9 March 2022
MCMBOGO C.G.
2,433 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that registered landowners can hold ancestral family land in trust for relatives, defeating a claim to sole half ownership.

What this practically means

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Executive summary

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The Plaintiff sued by plaint dated 4th October 2017 seeking a declaration that he legally owns half of land parcel Makueni/Maiyani/335, an order for subdivision and transfer of that half (or an order to the Land Registrar, Makueni County), and a perpetual injunction against eviction or interference. The Defendants opposed via a joint amended statement of defence and counterclaim seeking dismissal of the suit, declarations that the land was originally owned by Kivindyo Thathi and is held in trust for his estate's beneficiaries, and subdivision into 7 equal portions for each child of the late Kivindyo Thathi. At the hearing, the Plaintiff testified that he and his late brother Kang'ele Kibindyo were co-registered first owners after the 1983/84 adjudication; the Defendants testified that the land was ancestral land inherited from the grandfather and that registration in the brothers' names was in trust for the family. The court framed two issues: whether a customary trust exists, and whether the absent 1st, 5th and 6th Defendants abandoned their claims. Applying the Supreme Court's criteria in Isack M'inanga Kiebia v Theuri M'lintari, the court found the land was ancestral family land which, under Kamba custom, could only be registered in the adult male children's names after the patriarch's death, so a customary trust under Section 28 of the Land Registration Act was proved, defeating the Plaintiff's claim. The non-attendance issue failed, as the 2nd Defendant held authority to defend for all. The counterclaim partially succeeded: a declaration of trust was issued, but no subdivision into 7 portions was ordered. Each party was ordered to bear its own costs. Judgment delivered via email on 9th March 2022 by MBOGO C.G., Judge.

Key legal issues

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01

Existence of a customary trust over Makueni/Maiyani/335

Holding

The Defendants proved a customary trust; the suit property was ancestral family land and the registered proprietors hold it in trust for the beneficiaries of the estate of Kivindyo Thathi

Reasoning

The land was ancestral land of Kivindyo Thathi; under Kamba custom land vests in male children, and since the patriarch had died by 1979 the land could only be registered in the names of his adult male sons even though the daughters were adults and entitled under customary law forbidding their registration. The trust qualifies under the Kiebia criteria and Section 28 of the Land Registration Act.

p. 3
02

Whether non-attending defendants abandoned their counterclaim

Holding

No; the joint counterclaim subsists because the 2nd Defendant had authority to defend for all defendants and no individual relief was sought

Reasoning

The cause of action was similar for the joint defendants; a consent and authority filed on 18th February 2019 granted the 2nd Defendant authority to plead and defend for all; none of the counterclaim prayers sought individual rewards; hence failure by the 1st, 5th and 6th Defendants to testify did not amount to abandonment under Order 12 Rule 5.

Legal principles established

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  • A customary trust is an overriding interest under Section 28 of the Land Registration Act that may defeat a registered proprietor's title even though not noted in the register
  • The essentials of a customary trust are as set out by the Supreme Court in Isack M'inanga Kiebia v Theuri M'lintari
  • Where some defendants do not attend, the court may proceed and give such judgment as is just (Order 12 Rule 5 Civil Procedure Rules)

Court orders

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  1. 1.A declaration is hereby made that all that Land Parcel Makueni/Maiyani/335 registered in the names of the Plaintiff and the 1st and 2nd Defendants, is held in trust for the beneficiaries of the Estate of the late Kivindyo Thathi.
  2. 2.Each party shall bear its own costs of the suit.

Authorities

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Legislation

  • Land Registration ActSection 24
  • Land Registration ActSection 25(1)(b)
  • Land Registration ActSection 28
  • Civil Procedure Rules, 2010Order 12 Rule 5

Cases cited (5)

  • Francis Kaagu Karichu v Lucy Nyambura Mburu
    [2019] eKLR
  • Mbui Mukanga v Gerald Mutwiri Mbui
    Civil Appeal No. 281 of 2000
  • Julius Maina Muruku v Jane Waithira Mwangi
    [2018] eKLR
  • Isack M'inanga Kiebia v Theuri M'lintari & another
    [2018] eKLR
  • Kiarie v. Kinuthia
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land claims (suit commenced by plaint; statutory basis under the Land Registration Act, 2012 applied)

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, "Samson Mbindi Kivindyo (Substituted as the Plaintiff in place of Simon Kibindyo Kituku -Deceased) v Duncan Kivindyo Kanyele & 5 others [2022] KEELC 923 (KLR)", Case Analysis (2022). Makueni ELC Suit (Plaint dated 4th October 2017) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/923/eng@2022-03-09

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