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ELCAllowedBungoma ELC Case (plaint filed 19th August 2016)· [2022] KEELC 1192 (KLR)

Samson Macheso Masai v John Macheso Mafunga & 2 others [2022] KEELC 1192 (KLR)

Environment and Land Court
1 February 2022
BOBoaz N. Olao
7,042 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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A Bungoma court confirmed that land registered in one family member's name can still be held in trust for relatives left out during inheritance.

What this practically means

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Executive summary

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In this family land dispute, the plaintiff sued his brothers claiming that land parcels NDIVISI/MUCHI/1079 (36.5 acres) and NDIVISI/MUCHI/1621 (49.6 acres), registered in the 1st and 2nd defendants' names during adjudication, formed part of their late father MASAI's ancestral estate and were held in trust for him, seeking declarations, 10 and 5 acres respectively, and transfers. The defendants denied the trust and fraud, contended the plaintiff had been given 10 acres which he sold to DW4, and pleaded limitation and res judicata; those pleas had earlier been dismissed as a preliminary objection in a ruling of 31 July 2018, whose costs order the court sua moto vacated, substituting that each party bear their own costs. At trial, the court found the suit land was part of MASAI's ancestral estate rather than private property, that the defendants' registration in their sole names without disclosing the plaintiff's interest constituted fraud proved to the required standard, and that the defendants hold the land under both customary and constructive trusts. Following Isack M'Inanga Kebia, the court held the plaintiff's lack of occupation did not defeat the trust, and, applying Section 112 of the Evidence Act, shifted the evidential burden to the defendants, who failed to disclose the extent of the estate. Judgment was entered for the plaintiff: a declaration of trust, determination of the trust, and transfer of 5 acres from parcel 1079 and 10 acres from parcel 1621, with the Land Registrar and County Surveyor directed to excise and register the land, the Deputy Registrar empowered to sign in default, and each party bearing their own costs given the family relationship.

Key legal issues

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01

Whether the suit land was ancestral land of MASAI rather than private property of the defendants

Holding

The court found the suit land formed part of the ancestral land owned by MASAI, inherited by the defendants, not acquired as private property.

Reasoning

Both sides agreed the parcels derived from the father MASAI's estate; no defendant claimed purchase. Ancestral property as defined in Black's Law Dictionary applies, and had MASAI lived through adjudication, the land would have registered in his name and been shared among his family.

p. 5
02

Whether the defendants fraudulently registered the suit land without disclosing the plaintiff's interest

Holding

Fraud was established to the required standard because the defendants failed to disclose the plaintiff's interest during adjudication and registration.

Reasoning

Having inherited ancestral land, the defendants were obliged to make full disclosure during adjudication so the youngest son received his share; the registration in their sole names evidenced the pleaded fraud, proved to the standard in Central Bank of Kenya v Trust Bank Ltd.

p. 5
03

Whether the defendants hold the suit land in trust for themselves and the plaintiff

Holding

The defendants hold the land under both customary trust and constructive trust for themselves and the plaintiff.

Reasoning

Applying Section 25 of the Land Registration Act and Kanyi v Muthiora, registration does not relieve trustees of their duties. Applying the Supreme Court's factors in Isack M'Inanga Kebia, the plaintiff, a son of MASAI, proved a customary trust; the fraudulent acquisition also made the defendants constructive trustees.

p. 6
04

Whether lack of occupation defeats the plaintiff's customary trust claim

Holding

Non-occupation does not extinguish the claim; a customary trust is presumed for family benefit regardless of possession.

Reasoning

The plaintiff worked in Uganda while the land was shared. Relying on Isack M'Inanga Kebia, the court held that where land is held for the benefit of family members, a customary trust is presumed whether or not they are in possession or occupation.

p. 6
05

Whether the plaintiff is entitled to 10 and 5 acres from the respective parcels

Holding

The plaintiff was awarded 10 acres from parcel 1621 and 5 acres from parcel 1079, allocated in reverse to ensure parity.

Reasoning

The plaintiff proved his entitlement; the court would have awarded more given the 85 acres held by the defendants against the plaintiff's 15, but awarded what was sought, redistributing the hivings between parcels for reasonable parity among siblings.

p. 8

Legal principles established

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  • Registration of land does not extinguish a customary or constructive trust in favour of family members entitled to ancestral land
  • A customary trust may be presumed in favour of family members whether or not they are in possession or actual occupation of the land
  • Where a fact is especially within a party's knowledge, the evidential burden of proving or disproving it lies on that party

Court orders

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  1. 1.A declaration that the defendants hold the land parcels NO NDIVISI/MUCHI/1079 and NDIVISI/MUCHI/1621 in trust for themselves and for the plaintiff
  2. 2.The trust is determined
  3. 3.John Macheso Mafunga and Patrick Mafunga Khwatenge shall within 30 days execute documents to transfer 5 acres out of NDIVISI/MUCHI/1079 to the plaintiff
  4. 4.Job Siundu Macheso shall within 30 days execute documents to transfer 10 acres out of NDIVISI/MUCHI/1621 to the plaintiff
  5. 5.The Land Registrar and County Surveyor Bungoma to excise 5 acres from parcel 1079 and 10 acres from parcel 1621 and register the same in the plaintiff's names
  6. 6.In default, the Deputy Registrar to execute the necessary documents on behalf of the defendants
  7. 7.Each party to meet their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 45(1)
  • Constitution of Kenya, 2010Article 159(2)(c)
  • Judicature ActSection 3(2)
  • Environment and Land Court Act, 2011Section 20(1) and 20(2)
  • Environment and Land Court Act, 2011Section 18(a)(iv)
  • Limitation of Actions ActSection 7
  • Evidence ActSections 107, 109 and 112
  • Land Registration ActSection 25
  • Registered Land Act (repealed)

Cases cited (7)

  • Central Bank of Kenya v Trust Bank Ltd & Others
    C.A Civil Appeal No 215 of 1996
  • Kanyi v Muthiora
    1984 KLR 712
  • Mbui Mukangu v Gerald Mutwiri Mbui
    C.A Civil Appeal No 281 of 2000 [2004 eKLR]
  • Isack M'Inanga Kebia v Isaaya Theuri M'Intari & Another
    2018 eKLR
  • Kiarie v Kinuthia
  • Twalib Hatayan Twalib Hatayan & Another v Said Saggar Ahmed Al Heidy
    2015 eKLR
  • Mbuthia Macharia v Annah Mutua & Another
    2017 eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and the Environment and Land Court Act, 2011 (original jurisdiction over land disputes)

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 Macheso Masai v John Macheso Mafunga & 2 others [2022] KEELC 1192 (KLR)", Case Analysis (2022). Bungoma ELC Case (plaint filed 19th August 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1192/eng@2022-02-01

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