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ELCDismissedEnvironment and Land Appeal E037 of 2022· [2024] KEELC 4126 (KLR)

Libuku v Libuku (Environment and Land Appeal E037 of 2022) [2024] KEELC 4126 (KLR)

Environment and Land Court of Kenya
8 May 2024
DOD. O. Ohungo
1,661 words in judgment
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The bottom line

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The Environment and Land Court in Kakamega dismissed a son's claim to family land because he failed to prove his father intended to hold it in trust for him.

What this practically means

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Executive summary

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The appellant sued the respondent in the Subordinate Court seeking a declaration that the respondent held land parcel Kisa/Wambulishe/421 in trust for him and an order directing transfer of half of it to him. He claimed the property, registered in the respondent's name, was family land entrusted to the respondent by their father, Peter Libuku Saya, to share equally with the appellant. By Hon. B Ojoo, SPM, dismissed the suit on 16th August 2022, each party bearing own costs. On first appeal to the Environment and Land Court at Kakamega, the appellant, relying on Isack M'inanga Kiebia v Isaaya Theuri M'lintari, argued the property was ancestral land subject to customary trust and that he had occupied a portion since 2007. The respondent, relying on Juletabi African Adventure Limited, countered that no intention to create a trust was proved. Ohungo J, restating the first appellate court's duty to re-evaluate the evidence, framed two issues: whether trust was established and whether the reliefs ought to have issued. Applying Section 28(b) of the Land Registration Act and the Kiebia customary-trust elements, the court found the deceased had registered four parcels, one per house, in the names of first born sons; the appellant, of the fourth house, claimed land reserved for the third house, so no intention to create trust in his favour existed. Born in 1978 and entering the land only in 2007, he was not settled there by the deceased. The court dismissed the appeal and, given the close family relationship, made no order as to costs.

Key legal issues

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01

Whether customary trust was established over Kisa/Wambulishe/421 in favour of the appellant

Holding

No; the deceased's actions showed the suit property was reserved for the third house and no intention to create trust in favour of the appellant (of the fourth house) was shown

Reasoning

The deceased had four wives and four parcels, each registered in the name of the respective first born son of each house to hold for younger siblings. The appellant, of the fourth house, claimed land reserved for the third house, negating any intention to create trust in his favour. He was born in 1978 after registration, entered only in 2007, and was not settled on the land by the deceased. Applying the Kiebia elements, the claim failed.

p. 4
02

Whether the Subordinate Court erred in dismissing the suit and refusing the reliefs sought

Holding

The trial court was correct; the appellant, having failed to establish customary trust, was not entitled to the reliefs sought

Reasoning

Since the appellant failed to establish customary trust over the suit property, the magistrate correctly found he did not prove his case and rightly declined to grant a declaration of trust and an order for transfer of half the property. The dismissal with each party bearing own costs disclosed no error warranting appellate interference.

p. 4

Legal principles established

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  • All registered land is subject to overriding interests including customary trusts unless the contrary is expressed in the register
  • A first appellate court must re-evaluate, re-assess and re-analyse the evidence and determine whether the conclusions reached by the trial court should stand
  • A customary trust claim is assessed on the nature of the holding of the land and the intention of the parties, on the elements set out in Isack M'inanga Kiebia v Isaaya Theuri M'lintari

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No order as to costs, each party bearing own costs in view of the close family relationship between the parties

Authorities

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Legislation

  • Trustee Actdefinitions of trust and trustee (quoted in Twalib Hatayan)
  • Land Registration ActSection 28(b)

Cases cited (6)

  • Isack M'inanga Kiebia v Isaaya Theuri M'lintari & another
    [2018] eKLR
  • Juletabi African Adventure Limited & another v Christopher Michael Lockley
    [2017] eKLR
  • Abok James Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Twalib Hatayan Twalib Hatayan & Anor vs. Said Saggar Ahmed Al-Heidy & Others
    [2015] eKLR
  • Kiarie v. Kinuthia
  • Kenya Ports Authority vs Kustron (Kenya) Limited
    2000 2 EA 212
On appeal from
Subordinate Court (Senior Principal Magistrate's Court)
Not stated in the judgment
Jurisdiction invoked
First appeal from the Subordinate Court under the court's appellate jurisdiction (statutory first appeal; no specific provision quoted in the judgment)

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, "Libuku v Libuku (Environment and Land Appeal E037 of 2022) [2024] KEELC 4126 (KLR)", Case Analysis (2024). Environment and Land Appeal E037 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4126/eng@2024-05-08

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