Makenzi & another v Mutua & another (Environment & Land Case E23 of 2020) [2024] KEELC 372 (KLR)
The bottom line
#A Kenyan court ruled family land registered in one brother's name was held in trust for his brothers, sending distribution to succession court.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the 1st Plaintiff
The 1st Plaintiff had locus standi because the Plaint did not indicate he sued as legal representative of his father's estate
The Defendants argued the 1st Plaintiff needed letters of administration to sue for his late father's estate. On perusal of the Plaint, the court found no indication that he filed suit as legal representative of the estate of Wilson Makenzi Misi. Since he did not purport to represent the estate, the objection failed and he had a right to appear and be heard.
Whether the deceased held the suit properties in trust
The deceased held the parcels emanating from Share No. 290 Lukenya Ranching in trust for himself and his two brothers
The court found as undisputed that Share No. 290 produced the suit parcels. Evidence showed both Plaintiffs resided on the land for over a decade without eviction, the 2nd Plaintiff entered before the deceased's demise, sale proceeds were shared, and PW3 corroborated the payment of a cow towards the purchase. Drawing on the law of resulting and customary trusts under the Land Registration Act, the court inferred a trust despite registration in the deceased's name.
Remedy: distribution versus succession court
Distribution of the trust parcels must occur in the pending succession cause, not in this suit
Although the trust was established, the parcels remain registered in the deceased's name and form part of his estate. The court therefore granted the declaration of trust but referred distribution to the existing Machakos High Court Succession Cause No. 95 of 1995, declining to order subdivision by the Land Registrar in this suit.
Legal principles established
#- Trusts, including customary trusts, are overriding interests over registered land notwithstanding the register
- A party relying on the existence of a trust must prove through evidence the existence and creation of such a trust
- A resulting trust automatically arises in favour of the person who advances the purchase money, whether or not the property is registered in his name
Court orders
#- 1.A declaration that the land known as Mavoko Town Block 3/3523, Mavoko Town Block 3/2640 and Commercial Plot No. 161 and 87, Lukenya Ranching and Farming Cooperative Society Ltd are held in trust by the deceased Jonathan Mutua Misi for the Plaintiffs' and deceased's families
- 2.Referral of the matter to Machakos High Court Succession Cause No. 95 of 1995 for distribution of the parcels of land which form part of the estate of Jonathan Mutua Misi (deceased)
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land (title to and trusts over registered land); specific provision not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makenzi & another v Mutua & another (Environment & Land Case E23 of 2020) [2024] KEELC 372 (KLR)", Case Analysis (2024). Not stated in judgment (Plaint dated 7th September, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/372/eng@2024-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.