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Court of AppealDismissedUnknown· [1994] KECA 108 (KLR)

Macharia Kihari v Ngigi Kihari [1994] KECA 108 (KLR)

Court of Appeal
13 July 1994
RKR.O. KwachACA.M. CockarAAA.M. Akiwumi
956 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that customary land trusts cannot be defeated by limitation periods, so registered family land can still be claimed.

What this practically means

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Executive summary

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The Court of Appeal (Kwach, Cockar and Akiwumi JJA) dismissed a second appeal concerning plot Ngenda/Githuguchu/332. The respondent sued his younger brother, the registered owner since 1958, alleging their father had purchased the land and registered it in the appellant's name to hold in trust for both sons under customary law. The resident magistrate initially dismissed the suit; Aluoch J ordered a retrial, and the acting resident magistrate at Thika found a customary trust existed, accepting that the father had bought the land using dowry received for the parties' sisters. Mbito J upheld that judgment on first appeal. Before the Court of Appeal, the appellant pursued only two issues: limitation and the application of Kikuyu customary law. The court held, first, that under section 72(1) of the Civil Procedure Act no appeal lies from findings of fact in a second appeal, rendering the factual grounds incompetent; counsel properly abandoned them. On limitation, it held that section 20(2) of the Limitation of Actions Act does not apply to trusts arising under customary law, since customary-law trusts may subsist for decades before formal transfer or division. On the customary-law ground, it held that the appointment of a younger son as trustee, where the eldest son was unavoidably unavailable, did not invalidate the trust, and it agreed with the concurrent findings of both lower courts. The appeal was dismissed with costs to the respondent. This judgment binds subordinate courts on the inapplicability of statutory limitation to customary-law land trusts.

Key legal issues

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01

Limitation and customary trusts

Holding

Section 20(2) limitation does not apply to trusts arising under customary law

Reasoning

The court held that land held under customary law is held in trust even after a right of action would ordinarily accrue, often for decades, before formal transfer or division is contemplated. Limitation is therefore foreign to customary law concepts of trust, and the appellant's contention that time ran from registration in 1958 or from the father's death in 1981 could not stand.

p. 2
02

Second appeal limited to matters of law

Holding

Grounds directed at findings of fact in a second appeal are incompetent

Reasoning

Under section 72(1) of the Civil Procedure Act, no appeal lies from findings of fact in a second appeal. Grounds three, four and five, being directed against factual findings, were incompetent, and counsel for the appellant properly abandoned them, leaving only the limitation and customary-law grounds for determination.

p. 1
03

Validity of customary trust with younger son as trustee

Holding

A customary trust appointing a younger son as trustee is valid where the eldest son is unavailable

Reasoning

While Kikuyu customary law ordinarily vests trusteeship in the eldest son, the court held that the unavailability of the eldest son at the time of the trust's creation does not render the appointment of a younger son invalid. The court deferred to the concurrent findings of the two lower courts, reinforced by undisputed evidence of occupation and burial on the land.

p. 2

Legal principles established

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  • Limitation under section 20(2) of the Limitation of Actions Act does not bar claims to enforce a trust arising under customary law
  • In a second appeal, findings of fact are not open to challenge
  • Appointment of a younger son as trustee under Kikuyu customary law is not invalid merely because the eldest son is unavailable

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
On appeal from
High Court
Unknown
Jurisdiction invoked
Section 72(1) of the Civil Procedure Act (second appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Macharia Kihari v Ngigi Kihari [1994] KECA 108 (KLR)", Case Analysis (1994). Unknown. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/108/eng@1994-07-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.