Belinda Murai & 9 others v Amos Wainaina [1981] KECA 34 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that written law overrides customary law on registered land, allowing a long-term occupier to claim ownership through adverse possession.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Kikuyu customary law or the written law (common law applicable to registered land under s 163 of the Registered Land Act) governs the respondent's status on the land
- 2.Whether the respondent was a donee, a licensee (Muhoi) or a tenant at will
- 3.Whether the respondent's possession was adverse so as to entitle him to title by prescription under s 38(1) of the Limitation of Actions Act
- 4.Whether the trial judge's finding of a tenancy at will and presumption of adverse possession could stand on the evidence
Key legal issues
#Conflict between customary law and the written law governing registered land
The written law applicable to registered land prevails over Kikuyu customary law; customary rights are not overriding interests on registered land, though customary law may be consulted for guidance on intention.
Relying on I v I, Obiero v Opiyo and Esiroyo v Esiroyo, Law JA held that s 163 of the Registered Land Act applies the common law of England as modified by equity to registered land, and that s 4 of that Act excludes inconsistent written law and practice relating to land. Customary law retains a role only in ascertaining the parties' intention, per s 3(2) of the Judicature Act. This is the ratio of the majority.
Status of a Muhoi in relation to adverse possession
A Muhoi is a licensee by permission of the owner who can be ordered off at any time and acquires no interest; he is not a tenant at will, though his position may be equated to a tenant at will only as to termination without notice.
The court considered Kimani v Gikanga and held that its obiter equating a Muhoi with a tenant at will should not be taken generally. A Muhoi is on the land by leave and licence of the owner, cannot acquire title against the owner, and is not a tenant of any sort. The classification mattered because a licence would prevent prescription.
Whether the respondent's occupation was permissive (licence) or a tenancy at will supporting adverse possession
On the evidence the trial judge was entitled to find the respondent a tenant at will; exclusive occupation raises a presumption of tenancy at will which was not rebutted, and the claim to title by adverse possession succeeded.
Applying Lynes v Snaith as modified by Cobb v Lane and Heslop v Burns, exclusive occupation presumes a tenancy at will unless circumstances negative it. The indicia (building a house, permanent crops, burial of his mother, Chief Murai assisting him to borrow on the security of the title) supported the presumption; there was no satisfactory evidence of the parties' intention to rebut it, and no signed written acknowledgement of title under s 24 of the Limitation Act.
Miller JA's dissent: primacy of customary law directions in the Judicature Act and reappraisal of evidence
Miller JA, dissenting, would have held the respondent a licensee (Muhoi) who could never acquire ownership, holding that courts must give due regard to African customary law under s 3(2) of the Judicature Act and may not legislate for Parliament by wholesale transplant of English common law.
Miller JA found the respondent himself admitted a Muhoi never acquires ownership, that the trial judge made no positive finding on Muhoi status, and that the indicia relied on (loans secured on the land, generosity) did not show an intention to erode Murai's title. He stressed s 87(1) of the Civil Procedure Act on assessors and held customary law remains in force until Parliament amends it.
Legal principles established
#- A written law prevails over customary law even when the parties are subject to that customary law, and rights under customary law are not overriding interests on registered land.
- A Muhoi is not, for all purposes, the equivalent of a tenant at will; a Muhoi is on the land by leave and licence and is not a tenant of any sort.
- Where parties were subject to customary law, a court applying the common law may, under s 3(2) of the Judicature Act, look to customary law for guidance on the intention of the parties.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal to the respondent, with a certificate for two advocates
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Law JA wrote the leading judgment. He held that on registered land the written law (common law as applied by s 163 of the Registered Land Act) prevails over Kikuyu customary law; that the trial judge was entitled to infer Amos was not a Muhoi but a tenant at will; that there was no written acknowledgement of title under s 24 of the Limitation Act to defeat the claim; and he would dismiss the appeal with costs and a certificate for two advocates.
I would dismiss this appeal with costs, with a certificate for two advocates. As Potter JA agrees, it is so ordered.p. 4
Wrote the judgment
Miller JA dissented. He would have reappraised the evidence, held that the respondent occupied as a Muhoi/licensee under Kikuyu custom, stressed that s 3(2) of the Judicature Act requires courts to be guided by African customary law, and would have allowed the appeal, set aside the High Court judgment and dismissed the originating summons with costs.
Accordingly and for my part I would allow this appeal, set aside the judgment of the High Court and dismiss the Originating Summons with costs to the appellants here and in the court below.p. 13
- On appeal from
- High Court Nairobi
- Civil Case No 811 of 1975
- Jurisdiction invoked
- Appeal from the High Court to the Court of Appeal (the judgment does not state the specific constitutional or statutory provision)
Relief refused
#Appellants' appeal against the declaration of title by adverse possession and order registering the respondent as sole proprietor
Majority found no basis to disturb the trial judge's finding that the respondent was a tenant at will whose possession had become adverse; no written acknowledgement of title under s 24 of the Limitation Act defeated the claim
Costs
Appeal dismissed with costs to the respondent, with a certificate for two advocates (per majority); Miller JA would have awarded costs to the appellants here and below.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I would dismiss this appeal with costs, with a certificate for two advocates. As Potter JA agrees, it is so ordered.
to the general effect that a written law prevails over customary law even when the parties are subject thereto, and that rights under customary law are not overriding interests where registered land is concerned
a Muhoi is on the land by the leave and licence and permission of the owner, but he is not a tenant of any sort
There was no satisfactory evidence as to the intention of the parties such as to rebut the presumption of a tenancy at will.
Accordingly and for my part I would allow this appeal, set aside the judgment of the High Court and dismiss the Originating Summons with costs to the appellants here and in the court below.
Issues in the judgment
#The citation of Heslop v Burns appears as [1974] 3 All ER 408 in the majority judgment but as [1974] 3 All ER 406 in Miller JA's judgment; Esiroyo v Esiroyo is cited as [1975] EA 388 by Law JA but [1973] EA 388 by Miller JA; Kimani v Gikanga appears as both [1965] EA 735 and [1965] EA 753.
The judgment text records 'As Potter JA agrees, it is so ordered' but Potter JA wrote no separate opinion, so his concurrence rests only on that statement and the signature block.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Namo Hardware Ltd v Cherangani Investment Co Ltd; Amar Hardware & Electricals (Interested Party) (Environment & Land Case E036 of 2021) [2025] KEELC 4469 (KLR)[2025] KEELC 4469 (KLR)11 Jun 2025followed
- Ethics and Anti Corruption Commission v Kenya Broadcasting Corporation & 3 others (Civil Application E060 of 2023) [2025] KECA 873 (KLR)[2025] KECA 873 (KLR)23 May 2025applied
Cite this brief
#Cite this brief
Caselaw, "Belinda Murai & 9 others v Amos Wainaina [1981] KECA 34 (KLR)", Case Analysis (1981). Civil Appeal (High Court Civil Case No 811 of 1975). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1981/34/eng@1981-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.