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Courts to the rescue of kin who lose property to rogue trustees

By Everlyne Kwamboka | June 21st 2020

The courts are seeing more cases where trustees given powers to manage estates of deceased family members breach the agreements and instead register the properties in their names.

The beneficiaries locked out of their inheritance have to turn to the courts to secure what is rightfully theirs. This happens when they cannot resolve the dispute at home through mediation, or when they come of age.

Some of the disputes arise from land title deeds registered under the repealed Registered Land Act in the names of family members who were holding family properties in customary trust.

Lawyer Kibe Mungai says families should avoid using the customary trust method to protect their parents’ estates.

“There is an abuse of customary trust and that is why it is important for family members to formalise agreements made by applying for letters of administration in order to make things clear on who are the beneficiaries of the deceased’s estate,” he said, adding that the law of succession protects even minors in their parents’ inheritance.

Lawyer John Chigiti said the public should be sensitised on laws that govern succession matters to avoid cases where family members entrusted with the estate take everything.

“The courts are there to rein in the conduct of such people. The community needs to be sensitised on what it means to hold in trust,” said Chigiti.

Since January, the courts have ruled on more than 50 cases touching on customary trust issues and ordered for cancellation of title deeds used to lock out beneficiaries from what is rightfully theirs.

High Court Judge Dalmas Ohungo recently ruled that all registered land is subject to overriding interests as trusts, including customary trusts, which do not have to be noted in the register.

He said this in a case in which a man was sued by his two younger brothers for registering in his name a piece of land allocated to their late father by Munanda Farmers Cooperative Limited in 1971.

Paul Nuthu died in 1992 and his wife also passed away years later, forcing the sons and other relatives to hold a meeting where it was agreed under Kikuyu customary law that the suit property be registered in the eldest son’s name, who would later give his two brothers their share of the property.

But Stephen Kabuyu violated the agreement, forcing Misheck Warui and David Mwangi to go to court.

They argued that the suit property belonged to Nuthu and was only registered in Kabuyu’s name to hold it in trust for them.

In his April 30 judgement, Justice Ohungo said that even if Kabuyu’s brothers did not produce the agreement in court, the fact that the suit property was family land and the defendant their elder brother led to a presumption that he was holding the property in trust for himself and his brothers.

Breach of trust

“His actions clearly show a breach of trust. The solution in the circumstances is to accede to the plaintiffs’ plea that the property be subdivided so that each party gets his exclusive parcel,” the judge said.

He ordered Kabuyu to subdivide the property into three portions, process certificates of title for each of the portions and hand over the documents to his brothers within 90 days.

In default, the judge directed the deputy registrar of the High Court to execute the documents and ensure that everyone got a share of the land.

In another case, Paul Ngigi claimed his father, who had three wives before his death in 1974, had inherited land in Kiambu’s Muguga area.

The land was transferred to his elder brother, Lawrence Njoroge, to hold in trust for the family. Njoroge later transferred the property to Ngigi’s step-brother, Edward Waweru.

Ngigi sued Waweru in 2017 when he refused to subdivide the property into three equal portions to cater for all beneficiaries of their late father’s estate.

In his defence, Waweru admitted that the parties were family members, but denied that Ngigi was a dependant of the suit property.

It was his contention that he became the beneficial owner of the suit property following Njoroge’s death, but denied that he was to hold the property in trust for other dependants.

In her judgement delivered on June 15, High Court Judge Lucy Gacheru said Waweru did not give evidence that he was not holding the property in trust of the family, but Ngigi had produced minutes of a meeting between the family and chief showing the land was to be subdivided.

“Having held and found that the defendant is holding the suit property in trust for the family, it is then only fair that each family member gets their own share of the suit property. It thus then follows that the suit property must be subdivided and transferred to the beneficiaries,” said Justice Gacheru.

The judge said the suit land is registered under the repealed Registered Land Act, adding that Section 80 of the Land Registration Act gives the court the powers to order for the cancellation of the title in Waweru’s name.

But not all claims are genuine.

In West Pokot, the court stopped a man from claiming his brother’s 16.6-hectare land he claimed to be their ancestral property held in customary trust.

Justice Mwangi Njoroge declared Limanyang Loitareng a trespasser on his elder brother’s property in Kapsangar.

Kasikar Loitareng had bought the land from his uncle, Longurunyang Tuliamuk, for Sh10,000 and a title deed issued to him in 2006.

He allowed his brother to live on the land for three years when he married a second wife, but when the time lapsed he declined to move out.

Held in trust

In his defence, Limanyang argued that the land belonged to their father, Mengich Tuliamuk, but was registered in Kasikar’s name to be held in trust for the family.

The court ruled in favour of Kasikar, saying Limanyang had no authority to be on the land after he was evicted.

“I find that the defendant’s continued occupation of the land after he was asked to vacate the same constitutes trespass upon private land,” said Justice Njoroge in a decision delivered on March 3.

The court gave Limanyang 120 days to vacate the land and ordered him not to interfere or do anything that would prejudice his elder brother’s quiet enjoyment and occupation of the property.

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