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JudgmentNIGHT SIFULA NASIARI VS RAYMOND K. OMWAMI8 min read

NIGHT SIFULA NASIARI VS RAYMOND K. OMWAMI

Environment and Land Court at Vihiga Environment and Land Court · · E. ASATI, J

Introduction

Vide the plaint dated 20th November 2023, the plaintiff NIGHT SIFULA NASIARI, sued the Defendant, RAYMOND K. OMWAMI, claiming for the following orders: -

  1. A declaration do issue to the effect that the defendant holds and is registered as a trustee on behalf of the plaintiff and the beneficiaries and dependents of PETER MWAMI NASIALI of LR parcels; -
  • NORTH MARAGOLI/KISATIRU/507
  • NORTH MARAGOLI/KISATIRU/1275
  • NORTH MARAGOLI/KISATIRU/1276
  • NORTH MARAGOLI/BUKULUNYA/293

And the same should be ordered to be transferred to the respective beneficiaries.

  1. An order that the Defendant be directed to execute all the relevant transfer documents to transfer the parcels above to the other beneficiaries, failure to which the court Registrar be directed to execute the relevant transfer documents to effect the registration of the parcels above to other beneficiaries.
  2. Costs of the suit be borne by the defendant.
  3. Any other or further order the court deems just and fit to grant.

In reply to the suit the defendant filed statement of defence dated 9th April, 2024 denying the claim and praying that the suit be dismissed with costs.

The evidence

The Plaintiff’s claim was that both parties herein are the children of one Peter Nasiali Mwami, deceased.  That the estate of the deceased comprised of the suit lands.  That before his death, the deceased caused registration of the suit lands in favour of the defendant who was to hold the same in trust and for the benefit of the children and dependents of the deceased on condition that the same would be shared out amongst the children at a later date.  That the defendant had failed, ignored and refused to execute relevant documents to distribute the parcels he holds in trust.

The plaintiff testified as PW1.  She adopted the contents of her witness statement dated 28/8/2024 as her evidence in chief.  She stated in the witness statement that her father was called Peter Mwami Asiari and that he died in the year 1991.  That her mother’s name was Aireen Afandi who died in the year 1985.  That sometime in the year 1991, two months before her father died, the defendant secretly asked her late father to transfer all the parcels of land from his name to the defendant’s name.

That the registration was done secretly and without notice to her or any of the surviving family members.  That the defendant is holding the land in trust for her and the surviving members of the family.  That she has no problem if the defendant retains land parcels numbers NORTH MARAGOLI/KISATIRU/1275 and 1276 which are commercial plots whose value is more than 15 million shillings.  That land parcel No. NORTH MARAGOLI/KISATIRU/293 should be ordered to be registered in her name because it is the land that her late mother had been given by her late father and should be registered in her name for the benefit of her children.

That parcel number NORTH MARAGOLI/KISATIRU/507 should be registered in the joint names of the parties herein to hold in trust for all the other surviving benefices of her late father.

PW1 produced exhibits namely; certificate of death for Peter Mwami Nasiali, certificate of death for Aireni Afandi Mwami, green card for the suit land and certificate of official search. She testified that she stays on land parcel No. NORTH MARAGOLI/KISATIRU/507.  That parcel No. NORTH MARAGOLI/KISATIRU/1275 and 276 are Commercial plots.

On Cross examination, PW1 testified that she sought for Letters of Administration so as to sue in respect of only one parcel of land namely parcel No. NORTH MARAGOLI/KISATIRU/507.

That she had brought the suit on her own behalf and on behalf of the beneficiaries of the deceased. 

On behalf of the defence, the defendant testified as DW1. He adopted the contents of his witness statement dated 9th April, 2024 as his evidence in chief.  He had stated in the said witness statement that his deceased father transferred land parcels No.s BUKULUNYA/293, NORTH MARAGOLI/KISATIRU 1276 & 507 into his name.  That they had been staying in peace until the plaintiff became a witness in a case that the Defendant had with one Dawson Majani when the plaintiff was coached to claim that the defendant was holding the suit lands in trust so that she could assist Majani to get a share of the land.

On cross examination, the Defendant stated that the suit lands were a gift which he got from his father and that he did not know that parcel Number NORTH MARAGOLI/KISATIRU/ 507 was to be given to the Plaintiff’s mother.

Submissions

At the close of the evidence, parties filed written submissions on the case.  It was submitted on behalf of the defendant vide the written submissions dated 14th November 2024 filed by the firm of Mukabi & Co Advocates that the issues for determination in the suit were;

  1. Whether or not the defendant was registered to hold in trust the suit land on behalf of the plaintiff and the beneficiaries.
  2. Whether or not the defendant does execute all the relevant transfer documents to transfer the parcel of land to other beneficiaries.
  3. Who pays costs.

Counsel submitted that section 28 of the Land Registration Act, 2012 provides that unless the contrary is expressed in the register, all registered land shall be subject to various overriding interests without being noted on the register.  That one of such interests is customary trust.  That to prove the existence of customary trust one has to prove that

  1. the suit properties were ancestral clan land.
  2. during the adjudication and consolidation one member of the family was designated to hold the land on behalf of the family
  3. the registered person was the designated family member who was registered to hold the parcel of land on behalf of the family.

Counsel relied on the case of Isaack Kieba M’nang’a –vs- Isaaya Theuri M’lintati & another (2018) eKLR where the Supreme Court observed that each case has to be determined on its own merits and quality of evidence.

That the plaintiff was not clear on who the beneficiaries claiming the land are.  That the defendant is not a registered owner of L.R No. North Maragoli/Kisatiru/1275.  That the suit lands were not registered in the name of the defendant during land adjudication and consolidation.  That all the alleged beneficiaries were adults by the time the suit lands were registered in the name of the defendant.  That the parties’ father obtained the requisite consent to transfer.  That it is not clear whether the suit lands were ancestral lands.  Counsel relied on the case of Juletabi African Adventures Limited & Another vs Christopher Michael Lockely (2017) eKLR where it was held that the onus lies on a party relying on the existence of a trust to prove it through evidence because the law never implies and the court never pressumes a trust.

Relying on the provision of Order 2 Rule 10(1) of the Civil Procedure Rules, Counsel submitted that the plaintiff did not plead the particulars of trust as required by law.

Counsel also relied on the case of Njenga  Chogera vs  Maria Wanjira Kimani  & 2 others (2005) eKLR where it was held that customary trust is proved by leading evidence on the history (root) of the suit property and the relevant customary law on which the trust is founded. Counsel urged the court to dismiss the suit with costs to the defendant.

No submissions were filed by or for the Plaintiff.

Issues for determination

Having keenly considered the pleadings, evidence placed before court by both parties and the submissions made, I find that one substantive issue for determination emerges namely; whether or not the defendant holds the suit lands in trust for the plaintiff and other beneficiaries of the deceased.

Analysis and determination

Section 28 of the Land Registration Act secures customary trust as an overriding interest to which registered land is subject. Section 28 (b) provides: -

“Unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interests as may for the time being subsist and affect the same without their being noted in the register.

  1. …………..
  2. Trust including customary trust….”

The Supreme Court gave guidance in the case of Isaak Kieba M’inanga vs Isaaya Theuri M’Linturi and Another, where it highlighted the elements of a customary trust as: -

  1. the land in question was before registration, family, clan or group land.
  2. the claimant belongs to such family, clan or group.
  3. the relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous.
  4. the claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances.
  5. the claim is directed against the registered proprietor who is a member of the family, clan or group.

Further in Ngugi Kamau and Another (Environment and Land case no 36 of 2020) [2022] KEELC 2261 (KLR and Juletabi African Adventure Limited and Another vs Christopher Michael Lockley [2017] eKLR it was held that the burden of proof lay with the party relying on the existence of a trust to prove the existence thereof. That to discharge the burden of the existence of a customary trust the claimant must prove the elements of customary trust.

The plaintiff’s claim is that the suit parcels of land were registered in the name of the defendant in trust for the plaintiff and other beneficiaries of the deceased.

Her case is that a few months before his death, the deceased caused the suit lands to be registered in the name of the defendant in trust for the plaintiff and the other beneficiaries. No evidence of the intention that the land shall be held in trust was exhibited.  The other beneficiaries were not called as witnesses.  There was no evidence that the other beneficiaries had given their consent or authority to the applicant to sue on their behalf. The plaintiff adduced no evidence that the suit lands were before registration clan or ancestral land

There was no explanation given why the defendant was to hold land in trust for the plaintiff who was already an adult as at the time of transfer and the beneficiaries.

I find that the plaintiff has not proved her case on a balance of probabilities and hereby dismiss it. As the parties are siblings I find it to be in the interest of justice that each party bear own costs of the suit.

Orders accordingly.

Judgement dated and signed at Vihiga and delivered this 13th day of February, 2025 virtually through Microsoft Teams Online Application.

E. ASATI,

JUDGE.

In the presence of:

Ajevi: Court Assistant.

Chitwah for the Plaintiff.                  

Owino & Rabote for the Defendant.

    NIGHT SIFULA NASIARI VS RAYMOND K. OMWAMI NIGHT SIFULA NASIARI VS RAYMOND K. OMWAMI