Kimani & 2 others v Mbuthi (Sued as the Administratrix and Personal Representative of the Estate of Mbuthi Muru (Deceased)) (Environment & Land Case 359 of 2019) [2024] KEELC 6705 (KLR)
The bottom line
#A Nairobi court ruled that family members can claim shares in ancestral land even when one relative holds the official title, ordering equal subdivision among the family.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs proved a customary trust over Dagoretti/Riruta/1241
Yes. The land was ancestral, having descended from Muuru Igiria to Mbuthi Muru, who registered himself on behalf of his siblings; uncontroverted elders' minutes recorded arrangements for sharing the land, establishing a Kikuyu customary trust.
The court found the suit property originally belonged to Muuru Igiria, father of Mbuthi Muru and his siblings. The defendant gave no evidence on how the deceased acquired the property, leaving the plaintiffs' claim uncontroverted. Elders' minutes of meetings in 2005 and 2008 recorded the deceased's willingness to allocate plots to his siblings and an eventual agreement to divide the 8 acres. Applying section 28 of the Registered Land Act and the Supreme Court's decision in Isack M'inanga Kiebia, the court held a customary trust subsists.
Whether the defendant is the absolute owner of the suit land unencumbered by any trust
No. Her registered title is subject to the proved customary trust; her counter-claim was dismissed and her possession-based objection failed since possession is unnecessary to prove a customary trust.
Although Mbuthi Muru was registered under the Registered Land Act Cap 300, sections 28 and 30(g) preserved overriding interests including customary trusts. The defendant produced no evidence of acquisition processes (searches, transfers, subdivision) rendering her evidence of no probative value. Relying on Kanyi v Muthiora, Mukangu v Mbui and the Kiebia decision of the Supreme Court, the court held registration did not extinguish the siblings' customary rights.
Legal principles established
#- Registration of a person as proprietor of land does not preclude him from holding it in trust for another; customary trust is an overriding, non-registrable encumbrance that need not be noted on the register
- A claimant of a customary trust need not be in actual physical possession or occupation of the land to prove the trust
- Trust is a question of fact and must be proved by evidence
Court orders
#- 1.Declaration that the late Mbuthi Muru held Land Parcel Number Dagoretti/Riruta/1241 in trust for himself and the late Gathoni Muru, the late Beth Wanjiru Kamau and Nyokabi Kimani in equal shares
- 2.Dismissal of the defendant's counter-claim
- 3.The defendant directed to subdivide and share out Land Parcel No. Dagoretti/Riruta/1241 to the 2nd and 3rd plaintiffs (surviving grandchildren of Gathoni Muru), the Estate of Beth Wanjiru Kamau, and the 1st plaintiff Nyokabi Kimani and herself in equal shares
- 4.No orders as to costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute concerning title, trust and partition of land parcel Dagoretti/Riruta/1241
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimani & 2 others v Mbuthi (Sued as the Administratrix and Personal Representative of the Estate of Mbuthi Muru (Deceased)) (Environment & Land Case 359 of 2019) [2024] KEELC 6705 (KLR)", Case Analysis (2024). Not stated in the judgment (Plaintiffs' suit arising from a plaint dated 12/11/2019, amended 21/11/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6705/eng@2024-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.