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ELCAllowedEnvironment & Land Case 41 of 2018· [2022] KEELC 15263 (KLR)

Muriungi v Mwithimbu & another

Environment and Land Court
7 December 2022
CNCK NZILI
1,181 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, a sister-in-law of the defendants, sued over an acre of LR No Ntirimiti/Settlement Scheme/95 (subdivided into several parcels, her homestead falling on LR No Ntirimiti/Settlement Scheme/1210) registered in the defendants' names. She claimed the defendants held the land in customary trust for her and her children, having been given to her late husband by her late mother-in-law, and sought a declaration of trust, an order compelling transfer into her name, and a permanent injunction. The 1st defendant did not enter appearance. The 2nd defendant, sued as legal representative of the estate of Charles Gatobu Mwithimbu, filed a defence admitting the land was registered in trust for the plaintiff, that the subdivision costs had been settled, and expressing willingness to transfer the land. The defendants offered no evidence at trial despite service. The plaintiff adopted her witness statement and produced documentary evidence including a trust agreement, the mother-in-law's intention letter and official searches. Applying the ingredients for customary trust set out in Isack M'Inanga Kiebia vs Isaaya M'Lintari, and the Court of Appeal's decision in Omollo v Oduor on customary trust as an overriding interest under sections 27 and 28(b) of the Land Registration Act, the court found the plaintiff had discharged her burden under section 107 of the Evidence Act and satisfied all the Kiebia requirements. The suit was found meritorious. The court declared that the defendants hold LR No Ntirimiti/Settlement Scheme/1210 in trust for the plaintiff and ordered them to transfer it to her within two months, failing which the Deputy Registrar would sign the transfer forms. Each party was to bear their own costs as a family matter.

Key legal issues

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01

Ingredients of a customary trust claim

Holding

The plaintiff satisfied all the Isack Kiebia requirements: land was family land before registration, she belongs to the family, relationship not remote, she could have been registered but for intervening circumstances, and claim is against a family member proprietor.

Reasoning

The court applied the five ingredients from Isack M'Inanga Kiebia. The plaintiff proved by pleading and documentary evidence that she is a sister-in-law of the defendants, that the land was given to her late husband by her late mother-in-law, and that the 2nd defendant admitted holding the land in trust for her.

02

Effect of admission by 2nd defendant

Holding

The 2nd defendant's defence admitted the trust circumstances and willingness to transfer, corroborating the plaintiff's claim.

Reasoning

The 2nd defendant admitted that the suit land was registered in trust for the plaintiff, that the monies for subdivision had been settled, and that he was willing to transfer the land into her names. No evidence was offered by the defendants despite service.

p. 3

Legal principles established

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  • Customary trust is an overriding interest under the Land Registration Act and must be proved by evidence

Court orders

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  1. 1.Declaration that the defendants hold LR No Ntirimiti/Settlement Scheme/1210 in trust for the plaintiff
  2. 2.Order that the defendants transfer LR No Ntirimiti/Settlement Scheme/1210 to the plaintiff within 2 months, in default of which the Deputy Registrar shall sign the transfer forms
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Evidence Actsection 107
  • Land Registration Actsections 27 & 28(b)

Cases cited (2)

  • Isack M'Inanga Kiebia vs Isaaya M'Lintari & another
    [2018] eKLR

    Ingredients to found a claim on customary trust

  • Omollo v Oduor
    Civil Appeal No 46 of 2017 (2022) KECA 371 (KLR)

    Customary trust as overriding interest under sections 27 & 28(b) Land Registration Act; evidence must prove it

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (Article 162(2)(b) Constitution; ELC Act)

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, "Muriungi v Mwithimbu & another", Case Analysis (2022). Environment & Land Case 41 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15263/eng@2022-12-07

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