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Court of AppealPartially AllowedCivil Appeal No. 2 of 2000

PETER NDUNGU NJENGA v SOPHIA WATIRI NDUNGU [2000] KECA 202 (KLR)

Court of Appeal of Kenya
14 July 2000
RKR.O. KwachASA.B. ShahEOE. O'Kubasu
1,403 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a High Court cannot divide a married couple's land while the marriage is intact, and trusts over property require clearly proven intention.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Kwach, Shah and O'Kubasu, JJA) allowed the appeal of Peter Ndungu Njenga against the ruling of Hayanga J in H.C.C.C. No. 4936 of 1993. The appellant and the respondent married under Kikuyu customary law in 1952 and remained married; in 1993 the appellant contracted a civil marriage with a second wife, describing himself as 'married under customary law'. The respondent sued for a declaration that the appellant held two parcels, NGONG/NGONG/3949 and KAJIADO/NGONG/432, in trust for them in equal shares, plus a perpetual injunction, claiming she had contributed to their acquisition. Hayanga J found she had contributed and declared trusts in unequal proportions, deciding the suit under section 17 of the English Married Women's Property Act 1882 as read with the Judicature Act. The appellant did not appeal but sought review under section 80 of the Civil Procedure Act and Order 44 of the Civil Procedure Rules, alleging error apparent on the face of the record. The Court of Appeal held that manifest errors existed: the judge treated a trust claim as a section 17 claim, divided land between living spouses as if in a succession cause, and made findings without proved customary law. Review was therefore properly invoked. The Court set aside the ruling and order of Hayanga J and granted the review but declined to remit for re-hearing. Exercising its powers under section 3(2) of the Appellate Jurisdiction Act, it held that the judge had no jurisdiction to alienate suit lands between spouses during their lifetime or unbroken coverture, set aside the judgment of 10th May 1996, dismissed the suit, and made no order as to costs.

Questions the Court framed

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

  1. 1.Whether the judgment of Hayanga J contained errors apparent on the face of the record sufficient to sustain the application for review under section 80 of the Civil Procedure Act and Order 44 of the Civil Procedure Rules.
  2. 2.Whether the claim, pleaded as one in implied or resulting trust, could properly be decided under section 17 of the Married Women's Property Act 1882 of England.
  3. 3.Whether a trust over the suit parcels could be implied or presumed in favour of the wife.
  4. 4.Whether the High Court had jurisdiction to divide or alienate the suit lands between spouses during their lifetime or unbroken coverture.
  5. 5.Whether, having granted the review, the Court of Appeal should remit the suit for re-hearing or itself make final orders.

Key legal issues

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01

Whether the judgment of Hayanga J contained errors apparent on the face of the record justifying review under section 80 of the Civil Procedure Act and Order 44 of the Civil Procedure Rules.

Holding

Yes. The judge treated a claim pleaded in implied or resulting trust as one under section 17 of the Married Women's Property Act 1882, divided the suit lands as if in a succession cause while the appellant was alive, and made a section 17 finding despite noting the absence of proved customary law on interspousal division.

Reasoning

The plaint founded the wife's claim on her alleged contributions to the acquisition of the two parcels, which sounds in implied or resulting trust. The judge instead decided the suit under section 17 of the English Married Women's Property Act 1882 through the Judicature Act. That mismatch, the division of land between living spouses as if in a succession cause, and findings made although no customary law on interspousal division was proved, were manifest errors apparent on the face of the record, so the remedy of review was properly invoked.

p. 3
02

Whether a trust over the suit parcels could be implied or presumed in favour of the wife.

Holding

No. A trust may be presumed only in case of absolute necessity and only to give effect to the parties' clearly determined intention; the intention to create a trust must be clearly determined before a trust is implied.

Reasoning

Relying on Ayoub v Standard Bank of S.A, the Court held that the presumption of a trust is exceptional and not to be arrived at easily. Courts imply trusts only to give effect to the intention of the parties, and that intention must be clearly determined before a trust is implied. The judge's findings rested on the respondent's contributions and the children's education, matters the Court treated as a red herring since all the children were adults; no clearly determined intention to create a trust was established.

p. 2
03

Whether the High Court had jurisdiction to divide or alienate the suit lands between spouses during their lifetime.

Holding

No. The learned Judge had no jurisdiction to alienate the suit lands between spouses during their lifetime or unbroken coverture; the suit ought to have been dismissed.

Reasoning

The parties were still married and no divorce was contemplated, yet the judge divided the parcels in fixed proportions and made findings about the benefit of the children although all the children were adults. The Court held that dividing the suit lands as if dealing with a succession cause while the appellant was still alive was an error apparent on the record and beyond the judge's powers, so dismissal rather than division was the proper outcome.

p. 3
04

Whether, having granted the review, the Court of Appeal should remit the suit for re-hearing or make final orders itself.

Holding

The Court declined to remit for re-hearing; exercising its powers under section 3(2) of the Appellate Jurisdiction Act, it made final orders itself, dismissing H.C.C.C. No. 4936 of 1993.

Reasoning

Under Order 44 rule 6 of the Civil Procedure Rules, once an application for review is granted the court may re-hear the case or make such order as it thinks fit. The Court considered a remittal for re-hearing not worthwhile and, being properly seized of the appeal, invoked section 3(2) of the Appellate Jurisdiction Act to make the orders the superior court could have made, thereby bringing the litigation to a final end.

p. 3

Legal principles established

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  • A court has no jurisdiction to alienate or divide suit lands between spouses during their lifetime or unbroken coverture; while the marriage subsists, a claim for such division must be dismissed.
  • Courts will not imply a trust save to give effect to the parties' clearly determined intention; a trust may be presumed only in case of absolute necessity and such presumption is not to be arrived at easily.
  • The remedy of review under section 80 of the Civil Procedure Act and Order 44 of the Civil Procedure Rules is available where there is a mistake or error apparent on the face of the record.

Court orders

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  1. 1.Appeal allowed.
  2. 2.The ruling and order of Hayanga, J set aside and the order for review granted.
  3. 3.The judgment of the superior court dated 10th May, 1996 set aside and substituted by an order dismissing H.C.C.C. No. 4936 of 1993.
  4. 4.No orders as to costs, the Court noting that this is a family dispute.

The bench

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

RK
majority
AS
majority
EO
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C No. 4936 of 1993
Jurisdiction invoked
Appellate Jurisdiction Act, section 3(2) (invoked for the Court's power to make any order the superior court could have made); the provision under which the appeal itself was lodged is not stated in the judgment.

Relief refused

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Declaration that the appellant holds NGONG/NGONG/3949 and KAJIADO/NGONG/432 in trust for himself and the respondent as beneficial owner (prayed in equal shares)

The High Court had no jurisdiction to alienate suit lands between spouses during their lifetime or unbroken coverture, and no trust could be implied absent a clearly determined intention; the whole suit was dismissed.

p. 3

Perpetual injunction restraining the appellant from transferring, alienating, selling or otherwise disposing of the suit properties or interfering with the respondent's peaceful occupation

The injunction fell with the dismissal of the entire suit; the judgment granting relief was set aside.

p. 3

Remittal of the suit to the High Court for re-hearing after the grant of review

The Court considered re-hearing not worthwhile and, under section 3(2) of the Appellate Jurisdiction Act, made final orders itself.

p. 3

Costs

No orders as to costs - each party to bear their own costs. The Court stated: 'As this is a family dispute we make no orders as to costs.'

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.

The upshot of all this is that this appeal is allowed. The judgment of the superior court dated 10th May, 1996 is set aside and substituted by an order dismissing H.C.C.C. No. 4936 of 1993. As this is a family dispute we make no orders as to costs.
p. 3Final orders - appeal allowed, judgment below set aside, suit dismissed, no order as to costs
we find and hold that the learned Judge had no jurisdiction to alienate suit lands between spouses during their life-time or unbroken coverture and he ought to have dismissed the suit.
p. 3Jurisdiction - no interspousal division of land during coverture
The courts will not imply a trust save in order to give effect to the intention of the parties. The intention of the parities to create a trust must be clearly determined before a trust is implied.
p. 2Implied and resulting trusts - requirement of clearly determined intention
In case of absolute necessity, but only in case of absolute necessity, the court may presume a trust. But such presumption is not to be arrived at easily.
p. 2Presumption of trust - exceptional circumstances only
It was clearly an error apparent on the face of the record when the learned Judge proceeded to treat a claim made under an implied or resulting trust as a claim made under section 17.
p. 3Review - error apparent on the face of the record
It was also an error apparent on the face of the record when the learned Judge proceeded to divide the suit lands as if he was dealing with a succession cause when the appellant is still alive.
p. 3Review - division of land between living spouses as a succession-cause error

Issues in the judgment

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material

Conflicting dates for the decision under appeal: the caption states the appeal is from a ruling 'dated 19th November, 1996', but the final orders set aside 'the judgment of the superior court dated 10th May, 1996', and the review application was filed on 5th June, 1996 - a date falling between the two.

minor

The second suit parcel is designated inconsistently: the plaint and the Court's narrative refer to 'KAJIADO/NGONG/432', while the quoted ruling of the learned Judge refers to 'NGONG/KAJIADO/43/2'.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "PETER NDUNGU NJENGA v SOPHIA WATIRI NDUNGU [2000] KECA 202 (KLR)", Case Analysis (2000). Civil Appeal No. 2 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/202/eng@2000-07-14

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