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High CourtAllowed
M'Kirera M'Ibari & Another v Nkanatha Ibari
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·~2 min to read original · ~4 min briefThe bottom line
#Kenya's High Court confirmed that land registered in one family member's name can still be held in trust for others, ordering a 1.74-acre transfer.
What this practically means
#Executive summary
#The two plaintiffs sued the defendant, their eldest stepbrother, claiming a 1.74-acre portion of land parcel No Abothuguchi/Kariene/69 (1.644 hectares) on the basis of trust. They averred that their deceased father, M'Ibari (died 1964), caused the family land to be registered in the defendant's name - as son of the eldest wife, Karoki - to hold it as trustee for himself and for the plaintiffs, sons of the second wife, Alice Nchune. The plaintiffs, living with their mother on a 0.33-acre plot, had persistently demanded sub-division and transfer of their share, which the defendant refused. The claim was not contested by the defendant. The court found that although the defendant was the registered proprietor, he held 1.74 acres of the suit land as trustee for the plaintiffs as family land. It entered judgment for the plaintiffs, ordering the defendant to excise and transfer 1.74 acres to them as joint proprietors in common in equal shares. Should the defendant refuse or fail to sign the sub-division and transfer documents, the Executive Officer of the Court was empowered to sign on his behalf. The plaintiffs were to bear all sub-division, survey and transfer charges, and, because the claim was uncontested, each party was ordered to bear his own costs. Judgment was dated and delivered at Meru on 28 January 1991 by SO OGUK, Judge.
Key legal issues
#01
Whether the defendant holds part of the suit land in trust for the plaintiffs
Holding
Yes; the defendant is a trustee to the extent of 1.74 acres for the plaintiffs
Reasoning
The father registered the land in the defendant's name, as eldest son, to hold it for himself and his stepbrothers. The plaintiffs proved the trust arrangement and the defendant did not contest the claim. The court found the plaintiffs entitled to 1.74 acres to be excised and transferred to them jointly.
p. 2
Legal principles established
#- Registration of family land in the name of the eldest son may create a trust in favour of other family members for an agreed share
Court orders
#- 1.Judgment for the plaintiffs for the transfer of a portion of land parcel No Abothuguchi/Kariene 69 measuring 1.74 acres
- 2.The defendant to excise the 1.74 acres out of the title and transfer it to both plaintiffs as joint proprietors in common in equal shares
- 3.The defendant to sign all sub-division and transfer documents; failing which the Executive Officer of the Court empowered to sign on his behalf
- 4.Plaintiffs to meet all sub-division, survey and transfer charges
- 5.Each party to bear his own costs
- Jurisdiction invoked
- Original civil jurisdiction of the High Court (trust claim over registered land; specific provision not stated in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M'Kirera M'Ibari & Another v Nkanatha Ibari", Case Analysis (1991). . Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.