The imp act of the use of implied trusts arising out of customary law rights in land disputes and its effect on the administration of justice

Abstract

This project demonstrates the impact that the use of implied trusts has on the rights of land owners under the Kenyan land laws. It attempts to shows a trend in the use of implied trusts in land related issues using various case law. Case law obtained from the official case database in Kenya is used as the main method of collecting data. However, the study also shows how acknowledging trusts arising out of customary law claims can be seen as a way to preserve culture and tradition but also a way in which the enjoyment of certain rights are limited to protect the rights of others. There was a shift in the application of implied trusts arising out of customary rights. Courts started to allow customary claims to be the basis for imposing implied trusts on land, whereas after the enactment of the repealed Registered Land Act of 1963, the courts were reluctant in imposing implied trusts · on the basis of customary rights. The application of customary law and common law principles needs to be in line with set guidelines and rules, to ensure consistency in providing justice.