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Court of AppealPartially AllowedCivil Appeal No. 189 of 1996

MURIUKI MARIGI vs RICHARD MARIGI MURIUKI & 2 OTHERS [1997] KECA 386 (KLR)

Court of Appeal
16 May 1997
RKR. O. KwachGPG. S. PallSBS. E. O. Bosire
1,445 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that a registered landowner cannot be forced to share his land with family while alive—succession rights only arise after death.

What this practically means

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Executive summary

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The appellant, registered proprietor of Magutu/Gatei/153 under the Registered Land Act, Cap 300, was the unsuccessful defendant in Nyeri High Court Civil Case No. 104 of 1991, in which his children and grandchild claimed a designated equitable share of the land based on alleged Kikuyu customary law rights. By consent the dispute was referred to arbitration before the District Officer and elders; the award required the appellant to subdivide the land. The High Court (Ang'awa, J) dismissed his application to set aside the award, prompting this appeal. The Court of Appeal allowed the appeal. It held that under sections 27 and 28 of the Registered Land Act a registered proprietor's title is absolute and indefeasible, subject only to registered encumbrances and the overriding interests in section 30, and that customary law claims of wives and children are not overriding interests, following Obiero v Opiyo and Esiroyo v Esiroyo. Section 3(2) of the Judicature Act subjects customary law to written law. The Court further held that the Law of Succession Act recognises wives' and children's rights only after death; during the owner's lifetime such rights are inchoate and unenforceable, and he cannot be compelled to distribute his land. Consequently the respondents had no cause of action, the reference to arbitration was improper, and the award was a nullity. The Court set the award aside, substituted an order striking out the original suit with costs, and awarded the appellant the costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondents' alleged Kikuyu customary law rights to a share of the registered land constitute overriding interests under section 30 of the Registered Land Act
  2. 2.Whether the respondents had a cause of action to compel the registered proprietor to subdivide and distribute the suit land during his lifetime
  3. 3.Whether the dispute was properly referable to arbitration and whether the resulting award was valid

Key legal issues

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01

Whether customary law rights of wives and children over a father's registered land are overriding interests under section 30 of the Registered Land Act

Holding

They are not; sections 27 and 28 confer absolute and indefeasible title, and customary law rights are subject to written law under section 3(2) of the Judicature Act.

Reasoning

Sections 27 and 28 of the Registered Land Act make a registered proprietor's rights absolute and indefeasible, subject only to registered encumbrances and the overriding interests listed in section 30. Section 3(2) of the Judicature Act makes African customary law applicable only so far as it is not inconsistent with written law. Following Obiero v Opiyo and Esiroyo v Esiroyo, customary claims are not overriding interests, and there was no evidence they were noted on the register.

p. 3
02

Whether the respondents had a cause of action to compel distribution of the land during the appellant's lifetime

Holding

No; the Law of Succession Act recognises wives' and children's rights only after death, and until then such rights are inchoate and unenforceable.

Reasoning

The Law of Succession Act recognises the rights of wives and children over a husband's or father's estate, but those rights accrue only upon death. While the registered owner is alive, his property is not available for sub-division and distribution except by his own free will. The respondents therefore had no cause of action in law that the court could enforce.

p. 3
03

Validity of the arbitration award

Holding

The award was a nullity because there was no dispute capable of being referred to arbitration.

Reasoning

Since the respondents' amended plaint disclosed no cause of action, there was no dispute between the parties capable of being referred to arbitration. The consent reference was therefore improper, and the award rendered on it was a nullity which the Court set aside, substituting an order striking out the suit.

p. 3

Legal principles established

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  • A registered proprietor under the Registered Land Act holds absolute and indefeasible title, subject only to encumbrances noted on the register and overriding interests under section 30; customary law claims of family members are not such overriding interests.
  • A registered owner of land cannot be compelled, during his lifetime, to subdivide or distribute his property among his wives and children; succession rights under the Law of Succession Act accrue only upon death.
  • A dispute in which the claimant has no cause of action known to law is not capable of being referred to arbitration, and an award rendered on such a dispute is a nullity.

Court orders

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  1. 1.The arbitration award is set aside and in its place an order striking out the original suit with costs is substituted
  2. 2.The appellant shall have the costs of this appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RK
majority
GP
majority
SB
majority
On appeal from
High Court of Kenya at Nyeri
H.C.C.C. No. 104 of 1991
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court (ruling and order dated 29th November 1994)

Relief refused

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Respondents' claim to compel the appellant to share the suit land among his wives and children during his lifetime

No cause of action in law; rights under the Law of Succession Act accrue only on death and remain inchoate before then

p. 3

Costs

The original suit was struck out with costs, and the appellant shall also have the costs of this appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

customary law rights being subject to rights under a written law, the respondents' rights are clearly excluded by the clear language of Section 27 and 28 of the Registered Land Act.
p. 3Indefeasibility of registered title versus customary law claims
Those rights accrue after deathOtherwise the rights remain inchoate and are not legally enforceable in any court of law or otherwise.
p. 3Inchoate nature of succession rights during the owner's lifetime
The award which was rendered was therefore, a nullity. We accordingly set it aside and in its place substitute an order striking out the original suit with costs.
p. 3Final orders - award set aside and suit struck out
The appellant shall also have the costs of this appeal.
p. 3Costs of the appeal

Issues in the judgment

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minor

Typographical/run-on error in the judgment text concerning when succession rights accrue

minor

Typographical error in the judgment text ('purpose' for 'propose')

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "MURIUKI MARIGI vs RICHARD MARIGI MURIUKI & 2 OTHERS [1997] KECA 386 (KLR)", Case Analysis (1997). Civil Appeal No. 189 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/386/eng@1997-05-16

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