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ELCPartially AllowedKakamega ELC Case (plaint dated November 8, 2013; number not stated in judgment)· [2022] KEELC 3429 (KLR)

Mbalilwa & 2 others v Mbalilwa (Environment & Land Case 7 of 2014) [2022] KEELC 3429 (KLR)

Environment and Land Court
7 June 2022
DOD O Ohungo
1,993 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that daughters inherit family land held in customary trust, ordering equal subdivision despite the registered owner being male and deceased.

What this practically means

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Executive summary

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The plaintiffs, sisters of the late Laban Mutonyi Mbalilwa, sued for an order that parcel Kakamega/Lukose/1468, registered in Laban's name, be subdivided into two portions between themselves and him, alleging he held it in trust as family land of their father Lazarus Mbalilwa, who died in 1965 before adjudication. Laban, the only son and first-born, was registered as proprietor as a minor in 1973 and again in 1987, and denied any trust, invoking the indefeasibility of first registration under the repealed Registered Land Act and arguing, citing Justus Maina Muruku v Jane Waithira Mwangi, that non-possession defeats a customary trust claim. After Laban's death, his widow and son were substituted as defendants. Ohungo J framed two issues: whether Laban held the property in trust and whether the reliefs should issue. Applying section 28 of the Land Registration Act, which makes customary trusts overriding interests, and the Supreme Court's criteria in Isack M'inanga Kiebia v Isaaya Theuri M'lintari, the court found all elements of customary trust satisfied: the land was family land, the plaintiffs were family members whose registration was precluded only by customs favouring male children, and the claim was against a family-member proprietor. Marriage and non-possession did not defeat their entitlement. The court ordered the administrators to subdivide the parcel into two equal portions - one for the estate, one registered in the plaintiffs' joint names - within 90 days, failing which the deputy registrar may sign the papers, with no order as to costs given the sibling relationship.

Key legal issues

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01

Whether a customary trust arose over the suit property

Holding

Laban held the suit property in trust for himself and the plaintiffs; all the Isack M'inanga Kiebia elements were met

Reasoning

The land was family land of the parties' father before registration; the plaintiffs belong to the family; their relationship is not remote; they could have been registered but for customs favouring male children; and the claim is directed at a registered proprietor who was a family member. Non-possession and marriage do not defeat a customary trust.

p. 4
02

Whether indefeasibility of title under the Registered Land Act (repealed) defeated the trust claim

Holding

No; the proviso to section 28 preserved trustees' obligations, and the Land Registration Act recognises customary trusts as overriding interests

Reasoning

Although the defendant relied on the indefeasibility provisions of the repealed Registered Land Act, section 28 expressly exempted proprietors from relief from duties as trustees, and sections 25 and 28 of the Land Registration Act contain similar provisions with trusts as overriding interests.

p. 3

Legal principles established

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  • Trusts, including customary trusts, are overriding interests under section 28 of the Land Registration Act and do not require registration
  • Registration as proprietor does not relieve a proprietor of any duty or obligation as trustee
  • Marriage of daughters does not defeat their entitlement to family land held on customary trust

Court orders

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  1. 1.Gertinah Isutsa Mutonyi and Hosea Chivole Mutonyi, as administrators of the estate of Laban Mutonyi Mbalilwa, to subdivide parcel Kakamega/Lukose/1468 into two equal portions, one retained by the estate and the other registered in the joint names of the plaintiffs
  2. 2.The administrators to sign all necessary papers and take all steps to effect the subdivision and registration within 90 days; in default, the deputy registrar is authorised to sign such papers on their behalf
  3. 3.No order as to costs of the suit

Authorities

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Legislation

  • Registered Land Act (repealed)section 28 (and sections 27 and 28 as cited by the defendant)
  • Land Registration Actsections 25 and 28, including section 28(b)

Cases cited (3)

  • Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another
    [2018] eKLR
  • Kiarie v Kinuthia
  • Justus Maina Muruku v Jane Waithira Mwangi
    [2018] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to title to land (not expressly stated in the judgment)

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, "Mbalilwa & 2 others v Mbalilwa (Environment & Land Case 7 of 2014) [2022] KEELC 3429 (KLR)", Case Analysis (2022). Kakamega ELC Case (plaint dated November 8, 2013; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3429/eng@2022-06-07

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