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ELCPartially AllowedEnvironment & Land Case E010 of 2021· [2024] KEELC 6304 (KLR)

Isimbu v Isimbu (Environment & Land Case E010 of 2021) [2024] KEELC 6304 (KLR)

Environment and Land Court
25 September 2024
4,467 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that land registered in one sibling's name can still be family land held in trust, ordering subdivision among the siblings.

What this practically means

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Executive summary

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The Plaintiff, sister to the Defendant, sued for a declaration that land parcel Nzaui/Nziu/683, registered in the Defendant's name, is held in trust for herself, Mwalili Isimbu and Tutwa Simba Mwikya, and for an order compelling subdivision into three equal portions and transfer. She relied on Kamba customary law under which women could not be registered as land owners, contending that the Defendant, as eldest son, was registered to hold the ancestral land in trust for his siblings during the land adjudication of the late 1960s. The Defendant denied the trust, asserting the land was allocated to him by their grandfather's family amongst male members and that, being married at the time, the Plaintiff was not entitled to inherit. After full trial, the court identified the sole issue as whether a customary trust existed. Applying the elements set out by the Supreme Court in Isack M'inanga Kiebia v Isaaya Theuri M'lintari, the court found the suit property to be ancestral family land; the Defendant admitted he neither purchased it nor led evidence of exclusive allocation, and confirmed that under Kamba customary law the eldest son would be registered in the absence of the father. Holding that a customary trust is a matter of evidence and an overriding interest under Section 28(b) of the Land Registration Act which need not appear on the register, the court found the trust established and entered judgment for the Plaintiff, ordering a declaration of trust and subdivision and transfer within 14 days, with the Deputy Registrar empowered to execute documents in default. Given the close family relationship, each party was directed to bear its own costs.

Key legal issues

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01

Whether a customary trust existed over the suit property

Holding

Yes. The suit property is ancestral land and the Defendant was registered in accordance with Kamba customary law to hold it in trust for his siblings.

Reasoning

The court found undisputed that the parties are siblings, the Defendant is the registered owner, and under Kamba customary law the eldest son would be registered in the absence of the father while women could not be registered as owners. The Defendant admitted he did not purchase the land and that his mother gave it to him together with his siblings. He led no evidence of allocation to him exclusively. Evidence of ancestral character and occupation corroborated the trust.

p. 8
02

Whether the Defendant's registration under the Land Registration Act extinguishes the trust

Holding

No. Registration does not defeat customary trusts, which are overriding interests under Section 28(b) of the Land Registration Act.

Reasoning

Relying on the proviso to Section 28(b), the court held that registration as proprietor does not exclude obligations of a trustee; customary trusts subsist without being noted on the register and run with the land. The Defendant therefore remains registered proprietor but holds the land on trust for the Plaintiff and other beneficiaries.

p. 8
03

Whether the Plaintiff proved her claim to the required standard

Holding

Yes, on a balance of probabilities, warranting the declaratory and subdivision orders sought.

Reasoning

The Plaintiff disclosed the nature of the trust in the plaint and led evidence of the applicable customary law. Her evidence on ancestral character of the land and continuous cultivation was corroborated, including by the Defendant's own witness. The court found the claim proved on a balance of probabilities and granted the two substantive prayers.

p. 9

Legal principles established

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  • A customary trust, if proved, is an overriding interest under Section 28 of the Land Registration Act that binds a registered proprietor even without noting on the register
  • The burden of proving a customary trust lies on the party asserting it and it is a matter of evidence, not inference
  • Elements of a customary trust as declared by the Supreme Court in Isack M'inanga Kiebia v Isaaya Theuri M'lintari

Court orders

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  1. 1.An order declaring that land parcel number Nzaui/Nziu/683 is held and registered in the name of the Defendant to hold in trust for Mukene Isimbu, Mwalili Isimbu and Tutwa Simba Mwikya
  2. 2.An order compelling the Defendant to subdivide Nzaui/Nziu/683 into three equal portions and transfer the same to Mukene Isimbu, Mwalili Isimbu and Tutwa Simba Mwikya within 14 days, and in default the Deputy Registrar to sign all relevant documents including transfers, mutation and application forms for effective transfer to the three beneficiaries
  3. 3.Each party to bear its own costs of the suit

Authorities

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Legislation

  • Land Registration ActSection 28(b) (proviso)
  • Land Registration ActSection 26
  • Civil Procedure ActSection 27
  • Law of Succession ActCommencement (1st July 1981)
  • Registered Land Act (repealed)Section 28 proviso

Cases cited (7)

  • Isack M'inanga Kiebia v Isaaya Theuri M'lintari & Another
    [2018] eKLR
  • FPS v SKM
    (2020) eKLR
  • Mary Wanjiru Mwangi & 4 Others v Eunice Wanjiru Igamba (sued as the Administrator of the estate of the late Peter Igamba Njoroge) & Another
    (2016) eKLR
  • Alice Wairimu Macharia v Kirigo Philip Macharia
    (2019) eKLR
  • Juletabi African Adventure Limited & Another v Christopher Michael Lockley
    (2017) eKLR
  • Salesio M'itonga v M'ithara & 3 others
    (2015) eKLR
  • Kiarie v. Kinuthia
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to title to land (claim for declaration of customary trust under Section 28 of the Land Registration Act)

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, "Isimbu v Isimbu (Environment & Land Case E010 of 2021) [2024] KEELC 6304 (KLR)", Case Analysis (2024). Environment & Land Case E010 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6304/eng@2024-09-25

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