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ELCDismissedEnvironment & Land Case 287 of 2013· [2023] KEELC 16173 (KLR)

Shiundu v Malala & another

Environment and Land Court
7 March 2023
2,565 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court dismissed a landowner's claim to ancestral land because he offered no real evidence of a family trust or fraud, just bare allegations.

What this practically means

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Executive summary

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The plaintiff sued the defendants over land parcel South Wanga/Bukaya/131, alleging it was ancestral land of his late grandfather held in trust for him, and that the first defendant fraudulently had it registered during 1967 land adjudication. The plaintiff obtained registration in 2006 through a South Wanga Divisional Land Disputes Tribunal award adopted in Kakamega CM Misc Award No. 125 of 2004, but the property was transferred back to the first defendant on 1st July 2010 pursuant to an order said to have been issued on 19th May 2010 in the same misc award, and was then subdivided into parcels 1276 and 1277 registered in the defendants' names. The plaintiff sought declarations that the transfer and subdivision were fraudulent nullities, cancellation of titles, reversion of the original parcel, and a permanent injunction. The second defendant was withdrawn from the suit in 2017 and later substituted by Paul Sakani Okello. The court framed three issues: trust, fraud/irregularity, and entitlement to reliefs. Applying the Supreme Court's customary-trust elements in Isack M'inanga Kiebia, it held the plaintiff proved nothing beyond a bare allegation of ancestral land, and he admitted no family relationship with the defendants, so no trust was established. On fraud, the court held such allegations must be proved above a balance of probabilities, found no evidence of the alleged forged order, and ruled that the legality of the orders in Kakamega CM Misc Award No. 125 of 2004 could not be collaterally challenged but only in those proceedings or on appeal or judicial review. The registered proprietors' titles were protected by sections 24 and 26 of the Land Registration Act. The suit was dismissed with costs to the defendants.

Key legal issues

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01

Whether the plaintiff established a customary trust over the suit property

Holding

No trust established; the plaintiff tendered no evidence beyond a bare allegation of ancestral land and admitted no family relationship with the defendants

Reasoning

Applying the Supreme Court's elements in Isack M'inanga Kiebia v Isaaya Theuri M'lintari, the plaintiff had to show the land was family, clan or group land, his membership of that group, and that the registered proprietor held for the family. Beyond the bare assertion that the land belonged to his late grandfather, no evidence was tendered, and the plaintiff admitted no family relationship exists between him and the defendants, rendering the trust claim idle.

p. 5
02

Whether the plaintiff proved fraud or irregularity in the 2010 transfer and subdivision

Holding

No fraud or irregularity established; no evidence of the alleged forged order, and the court lacked jurisdiction to review the orders in Kakamega CM Misc Award No. 125 of 2004

Reasoning

Fraud must be pleaded and proved to a standard above balance of probabilities. The plaintiff's complaint centred on the order of 19th May 2010 said to have issued in Kakamega CM Misc Award No. 125 of 2004. The court held that challenge belonged in those proceedings or on appeal/judicial review, and in any event no evidence demonstrated the alleged fraud.

p. 4
03

Whether the plaintiff was entitled to the reliefs sought

Holding

Not entitled; suit dismissed with costs

Reasoning

Having failed to establish trust or fraud, the plaintiff could not impeach the defendants' titles. The registered proprietors of the subdivided parcels enjoy the rights under section 24 of the Land Registration Act, and their certificates of title are conclusive evidence of proprietorship under section 26 unless the provisos are established, which was not done.

Legal principles established

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  • Whether trust exists is a question of fact which must be proven through evidence; the key considerations are the nature of the holding of the land and intention of the parties
  • Allegations of fraud must be proved to a standard above a balance of probabilities but not beyond reasonable doubt
  • A court not sitting on appeal or review lacks jurisdiction to determine the legality of orders made in prior proceedings; such challenges cannot be leapfrogged

Court orders

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  1. 1.The plaintiff's suit is dismissed with costs to the defendants

Authorities

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Legislation

  • Land Registration ActSection 24
  • Land Registration ActSection 26(1)(a) and (b)

Cases cited (4)

  • Isack M'inanga Kiebia v Isaaya Theuri M'lintari & another
    [2018] eKLR

    Elements for establishing customary trust: nature of holding of the land and intention of the parties

  • Kiarie v. Kinuthia

    What is essential in trust claims is the nature of the holding of the land and intention of the parties

  • Kuria Kiarie & 2 others v Sammy Magera
    [2018] eKLR

    Standard of proof of fraud - above balance of probabilities but not beyond reasonable doubt

  • John Mbogua Getao v Simon Parkoyiet Mokare & 4 others
    [2017] eKLR

    Standard of proof of fraud - above balance of probabilities but not beyond reasonable doubt

Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - jurisdiction over land disputes; court declined jurisdiction over legality of orders in Kakamega CM Misc Award No. 125 of 2004

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, "Shiundu v Malala & another", Case Analysis (2023). Environment & Land Case 287 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16173/eng@2023-03-07

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