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ELCDismissedLand Case 8 of 2021· [2023] KEELC 18033 (KLR)

Baya & 3 others (Suing on their own behalf and personal representative of the Estate of the Late Katana Gunga Baya - Deceased) v Gunga

Environment and Land Court
7 June 2023
MOM.A. Odeny
1,869 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Malindi court dismissed a family land claim because the family could not prove, with evidence, that a customary trust existed over the property.

What this practically means

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Executive summary

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The Plaintiffs, nephews of the Defendant and suing on their own behalf and as personal representatives of the estate of the late Katana Gunga Baya, sought a declaration that a customary trust existed over Kilifi/Chilulu/269, registered in the names of the deceased Katana Gunga Baya and the Defendant in equal shares. They sought subdivision into four portions per a customary boundary and a permanent injunction against the Defendant. Their case was that the original owner, Gunga Baya (Kosho), had four wives each allocated equal shares, and that during the 1978 adjudication the family paid for adjudication in the name of 'Katana Gunga & Others', evidencing trusteeship. The Defendant denied any intention to create a customary trust, contending the land belonged to two brothers as direct beneficiaries of Gunga Baya and that the Plaintiffs should inherit from their late father's estate, not his. The court framed a single issue: whether the Plaintiffs proved a customary trust. Applying the Supreme Court's elements in Isack Kieba M'inanga v Isaaya Theuri M'Lintari, the court held that although customary trusts are overriding interests under Section 28 of the Land Registration Act and registration does not extinguish them (Kanyi v Muthiora), a trust is a question of fact that must be proved by evidence and cannot be implied absent intention. The Plaintiffs' evidence fell short; as nephews they should inherit from their father's portion. The suit was dismissed with costs to the Defendant.

Key legal issues

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01

Whether a customary trust was created over Kilifi/Chilulu/269

Holding

No customary trust was established; the Plaintiffs failed to prove intention to create one

Reasoning

Applying the M'inanga elements, the court found the Plaintiffs' evidence fell short of the standard of proof. The land was registered in the names of Katana Gunga and the Defendant in equal shares, and the Plaintiffs, as nephews of the Defendant, should inherit from their late father's estate rather than from the Defendant.

p. 3
02

Effect of registration on customary trust claims

Holding

Registration does not extinguish customary trusts, which are overriding interests under Section 28 of the Land Registration Act

Reasoning

The court acknowledged that customary trusts subsist as overriding interests without noting in the register, citing Kanyi v Muthiora. However, this principle did not assist the Plaintiffs because they failed to prove the trust in the first place.

p. 4

Legal principles established

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  • Customary trust is a question of fact which must be proved by evidence; it cannot be implied by the court absent intention to create a trust

Court orders

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  1. 1.The Plaintiffs' suit is dismissed
  2. 2.Costs of the suit to the Defendant

Authorities

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Legislation

  • Registered Land Act Cap 300 (repealed)Sections 27, 28, 30
  • Land Registration Act 2012Sections 24, 25(1), 28
  • Civil Procedure RulesOrder 21 [1]

Cases cited (8)

  • Justus Maina Muruku v Jane Waithira Mwangi
    [2018] eKLR

    Customary trust as overriding interest

  • Donimic Otieno Ogonyo & 2 Others v Helida Akoth Walori
    [2022] eKLR

    Creation and enforcement of customary trust

  • Martha Thairora Gikundi v Elizabeth Kananu & Another
    [2019] eKLR

    Absence of intention to create customary trust

  • Isack Kieba M'inanga v Isaaya Theuri M'Lintari & another
    [2018] eKLR

    Elements that qualify a claimant as a customary trust beneficiary/trustee

  • Kanyi vs Muthiora
    (1984) KLR 712

    Registration does not extinguish customary law rights; trustee duties subsist

  • Njenga Chogera vs Maria Wanjira Kimani & 2 Others
    [2005] eKLR

    Customary trust is a question of fact to be proved by evidence

  • Muthuita vs Muthuita
    [1982-88] 1 KLR 42

    Trust must be proved by whoever claims under customary trust

  • Kiarie v Kinuthia

    Nature of holding and intention of parties are essential to customary trust

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court 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, "Baya & 3 others (Suing on their own behalf and personal representative of the Estate of the Late Katana Gunga Baya - Deceased) v Gunga", Case Analysis (2023). Land Case 8 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18033/eng@2023-06-07

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