ICK v CJ & another (Environment & Land Case 56 of 2019) [2023] KEELC 291 (KLR)
The bottom line
#A Kenyan court removed a daughter-in-law's caution on registered family land, ruling she failed to prove a customary trust or marriage claim.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit land is encumbered by customary trust
No customary trust was established; the 1st Defendant led no evidence of any customary law infusing a trust and the registered proprietor was absolute and indefeasible owner
The court applied Section 25 and 28 of the Land Registration Act and the Supreme Court's decision in Isaac M'inanga Kiebia, holding that a customary trust must be proved by evidence and that the categories are not closed. The 1st Defendant pleaded no particulars of trust, customs or applicable customary law, adduced no evidence of the history of registration, and alleged fraud without particulars. The land, registered in 1977 under the repealed Registered Land Act, vested the deceased plaintiff as absolute proprietor, and no law allows a child to demand land from a parent during the parent's lifetime.
Whether the 1st Defendant was justified in lodging a caution
The caution was unjustified because a claim of beneficial interest by a daughter-in-law does not fall within Section 71 of the Land Registration Act
Section 71 permits a caution by a person claiming a right to obtain an interest in land capable of creation by a registrable instrument, entitlement to a licence, or a bankruptcy creditor. The 1st Defendant's claimed beneficial interest, premised on alleged marriage to the proprietor's son, was not such an interest. Citing Maria Ngangi Gwako, the court held the onus was on the cautioner to justify the caution, which she failed to discharge, and Section 73(1) permits removal by order of the court.
Whether the Counterclaim is merited
The Counterclaim was dismissed in its entirety for failure to prove customary trust or entitlement to a share of the land
Having found no customary trust and no proof that the 1st Defendant was a wife to the deceased son (no Koita performed, no dowry proven with corroboration, no witnesses from the man's family at the alleged ceremonies), the court found the claims for declarations of trust, a share of the land, injunction and mesne profits without merit and dismissed the defence and Counterclaim wholly.
Legal principles established
#- Customary trust is an overriding interest under Section 28 of the Land Registration Act but must be proved by evidence on a case-by-case basis
- A caution under Section 71 of the Land Registration Act may only be lodged by a person claiming a right to obtain an interest in land capable of creation by a registrable instrument
- The onus lies on the cautioner to justify the lodging and continued existence of a caution once objected to by the proprietor
Court orders
#- 1.The Land Registrar, Kericho (2nd Defendant) directed to withdraw the caution lodged by the 1st Defendant on 13th August 2019 over Land parcel No. Kericho/Kabianga/XXXX within 30 days upon delivery of the judgment
- 2.The 1st Defendant's defence and Counterclaim dismissed in its entirety
- 3.Damages for wrongful registration of the caution refused
- 4.Costs of the main suit and Counterclaim awarded to the Plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over title, use and occupation of land (Land Registration Act; Civil Procedure Rules Order 11 compliance noted)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ICK v CJ & another (Environment & Land Case 56 of 2019) [2023] KEELC 291 (KLR)", Case Analysis (2023). Environment & Land Case 56 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/291/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.