Mbithi & 2 others v Mbithi (Environment & Land Case E020 of 2023) [2024] KEELC 5855 (KLR)
The bottom line
#A Murang'a court confirmed that land registered in one sibling's name can still belong to the whole family under customary trust, and ordered shares transferred.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit land is subject to a customary trust under Kikuyu Customary Law
Yes. The Court found the suit land was family land belonging to Mbithi Wokabi (deceased) at the time of registration in the Defendant's name, and that the Plaintiffs proved the existence of a customary trust.
The Court applied the burden of proof under Sections 107-109 of the Evidence Act and the elements in Isack M'inanga Kieba. The evidence showed the land originally belonged to Mbithi Wokabi and was registered in the Defendant's name as eldest son during consolidation and demarcation. Both parties agreed the land was subject to customary trust. The Court was satisfied that sufficient basis existed to conclude the land was family land at registration, thus proving the trust.
Whether the Plaintiffs are entitled to the orders sought
Yes. Prayers (a), (b) and (c) of the Plaint allowed entirely; the Defendant's prayers dismissed entirely.
The Court noted the matter had been subject to protracted litigation, culminating in the Mariira Land Disputes Tribunal award adopted as a court order on July 18, 2008, sharing the land among the four sons at 0.475 acres each. No appeal was lodged against that adoption. The Court held it was not sitting as an appellate court and declined to disturb the award, even though the tribunal had disregarded the interests of unmarried daughters under Kikuyu Customary Law.
Who should bear the costs of the suit
Each party to bear its own costs.
The Court held that since this is a land dispute between members of the same family, it directed each party to bear its own costs rather than awarding costs to any party.
Legal principles established
#- The onus lies on a party relying on the existence of a trust to prove it through evidence
- Registration of land under the Registered Land Act does not extinguish rights under Kikuyu Customary Law, nor relieve the registered owner of duties as trustee under section 28
- Elements to qualify a claimant as a trustee under customary law as set out in Isack M'inanga Kieba v Isaaya Theuri M'lintari
- Courts will not imply a trust save in cases of absolute necessity; the intention of the parties to create a trust must be clearly determined
- Under Kikuyu Customary Law, only unmarried daughters or daughters married but divorced and returned home were entitled to ancestral land
- A court that is not sitting on appeal will not disturb an adopted Land Disputes Tribunal award in the absence of an appeal against it
Court orders
#- 1.Declaration that the Defendant holds land parcel LOC.6/Kandani/737 in trust for himself and the Plaintiffs in equal shares
- 2.Dissolution of the customary trust and order that the Defendant transfer to the Plaintiffs their rightful shares
- 3.Order compelling the Defendant to execute all consents, transfer forms and requisite documents to facilitate partition, transfer and registration, and in default the Deputy Registrar to execute such documents
- 4.Dismissal of the Defendant's counterclaim/defence prayers in their entirety
- 5.Each party to bear its own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbithi & 2 others v Mbithi (Environment & Land Case E020 of 2023) [2024] KEELC 5855 (KLR)", Case Analysis (2024). Environment & Land Case E020 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5855/eng@2024-08-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.