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ELCDismissedNot stated in judgment· [2024] KEELC 4264 (KLR)

Saha & 2 others v Tsama (Environment & Land Case 181 of 2018) [2024] KEELC 4264 (KLR)

Environment and Land Court
23 May 2024
MNMwangi Njoroge
2,805 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A family lost its claim to ancestral land because it couldn't produce evidence proving a customary trust or fraud existed.

What this practically means

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Executive summary

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The Environment and Land Court at Malindi (Mwangi Njoroge, J) dismissed the Plaintiffs' further amended plaint claiming that land parcel Mgumo Patsa/Mazeras/113 and its subdivisions (1253 and 1254) belonged to the larger Mkuzi family and were fraudulently acquired by the Defendant. The Plaintiffs, descendants of Mkauma Mkuzi, alleged the property was registered in the name of Tsama Mkuzi Saha, the first-born son, to hold in trust for his brothers. The Defendant maintained his father purchased the land from one Mekeka Tututu before adjudication and later transmitted it to him and his mother through succession. The court framed three issues: existence of a trust, fraudulent registration, and whether the prayers were merited. Applying Section 28 of the Land Registration Act and the Supreme Court's framework in Isack Kieba M'inanga, the court held the Plaintiffs bore the burden of proving a customary trust by evidence but failed to show the land was ancestral clan land or to adduce any evidence of the adjudication process. On fraud, invoking Section 26 and Kuria Kiarie v Sammy Magera, the court held fraud must be specifically pleaded and strictly proved; the Plaintiffs tendered no evidence of fraud, so the Defendant's indefeasible title was upheld. The suit was dismissed in its entirety. Although the Plaintiffs argued adverse possession in submissions, that claim was never pleaded and was not determined. Noting the dispute was intra-family, the court departed from the general rule under Section 27 of the Civil Procedure Act and directed each party to bear its own costs. Judgment was delivered electronically at Malindi on 23rd May 2024.

Key legal issues

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01

Whether a customary trust existed over the suit property

Holding

No trust established; plaintiffs did not prove ancestral/clan land or designation at adjudication

Reasoning

Applying Section 28 of the Land Registration Act and the Supreme Court's elements in Isack Kieba M'inanga, the claimant had to show the land was family/clan land before registration and that the registered proprietor held it in trust. PW1 conceded there was no evidence of adjudication or of how the grandfather acquired the land. The burden of proving trust by evidence was not discharged.

p. 5
02

Whether the defendant's title was fraudulently acquired

Holding

Fraud not proved; registered proprietor's title upheld

Reasoning

Under Section 26 of the Land Registration Act a certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on proved fraud, misrepresentation, illegality, unprocedurality or corruption. Fraud must be distinctly alleged and proved. The plaintiffs adduced no evidence of fraud, and the transmission through succession (grant and confirmation) was regular.

p. 6
03

Costs

Holding

Each party to bear own costs despite the general rule

Reasoning

Section 27 of the Civil Procedure Act provides costs follow the event but the court retains discretion. Given the dispute is intra-family, the judge departed from the general rule.

p. 6

Legal principles established

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  • Customary trust must be proved by evidence; the burden rests on the claimant
  • Fraud must be specifically pleaded and strictly proved

Court orders

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  1. 1.The Plaintiffs' suit is dismissed
  2. 2.Each party to bear their own costs
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (as established under the ELC Act) over disputes relating to land

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, "Saha & 2 others v Tsama (Environment & Land Case 181 of 2018) [2024] KEELC 4264 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4264/eng@2024-05-23

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