Mukindia Kimuru & another v Margaret Kanario [2000] KECA 371 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that an unmarried daughter gets only a limited customary share of family land, not the whole parcel through an implied trust.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Mukindia was holding the suit land in trust for Margaret, that is, whether a trust in her favour can be inferred from the proceedings and judgment of the District Magistrate's Court in the succession cause.
- 2.Whether land can be held in trust for a beneficiary who cannot, per Kimeru Customary Law, inherit such land - i.e. whether an unmarried daughter excluded from inheritance can be made sole owner through an implied trust.
- 3.Whether Sarah made a valid oral will bequeathing the suit land to Margaret.
- 4.Whether Margaret's claim was time-barred under the Limitation of Actions Act (the 6th agreed issue at trial).
- 5.What share of the suit land an unmarried daughter may receive under Kimeru Customary Law, and for what duration.
Key legal issues
#Whether the succession proceedings before the District Magistrate's Court at Meru created or evidenced a trust in favour of Margaret.
No. The magistrate simply decided that, under Meru customary law's patrilineal practice, the brother of the deceased was entitled to inherit the suit land; Margaret was not a claimant in those proceedings and the existence of a trust, which must be proved by evidence, was not established.
Existence of a trust must be proved by evidence. Counsel relied on portions of the proceedings before Muchunku, DM II, but Margaret only gave evidence there and was not a claimant; the succession battle was between Mukindia and his sister Jennifer Mwari Kimuru. The magistrate's decision accorded with Meru customary law, and a court will not imply a trust unless absolutely necessary, so none arose from those proceedings.
Whether land can be held on trust for a beneficiary who cannot, under Kimeru Customary Law, inherit it.
No. If a female cannot inherit land she cannot be a beneficiary of it upon an implied trust; customary law allows an unmarried daughter only a limited share for a limited duration, not sole ownership through a presumed trust.
Kimeru customary law is patrilineal: daughters are normally excluded but may receive a share if they remain unmarried (Cotran, Restatement of African Law, vol. 2). Section 82(4) of the Constitution permits this differentiation as a matter of personal law and devolution of property on death. Since the law cannot presume a trust to the extent of making the female sole owner, no implied trust arose in Margaret's favour.
Whether the learned Judge of the High Court properly evaluated the evidence before declaring an implied trust.
No. He made short shrift of the trust finding, setting out the evidence in extenso without evaluating it and without considering the patrilineal aspects of inheritance - a serious misdirection.
The judge recited the evidence but, without properly evaluating its pros and cons, simply declared that Mukindia held Sarah's land in trust for Margaret. He did not consider whether Meru customary law permits an implied trust in favour of an unmarried adopted daughter of a divorced deceased female, nor the patrilineal inheritance principle. That misdirection led him into error and justified appellate interference.
Whether Sarah made a valid oral will bequeathing the suit land to Margaret.
No. Under Kimeru Customary Law a will is valid only if made by an owner who is very old or on his/her death-bed, before 'Mwiriga' (clan) elders, close relatives and friends, declaring the 'Mukuru mwene nja' and appointing a 'murungamiiri'; most of these requirements were not met.
Sarah's alleged death-bed statement to Jennifer Mwari that the land belonged to Margaret did not amount to a valid will. The witnesses' accounts conflicted: Martha Gakii said Sarah told her Mukindia would hold the land for Margaret, while Silas denied being told the estate would go to Margaret. On the whole evidence the formalities for a valid customary oral will were not complied with.
Whether Margaret's claim was time-barred under the Limitation of Actions Act.
The learned Judge was bound to decide this pleaded and agreed issue but made no finding on it; in any event, had the trust findings stood, section 20 of the Act exempts a beneficiary's action and the trustee's possession is deemed the beneficiary's, so limitation would not have barred Margaret, nor could Silas plead limitation, being aware of the earlier transactions.
The 6th agreed issue was whether the plaintiff's claim was time-barred, yet the judge made no finding on it. Since no trust and no valid will were established the point became unnecessary, but the court held that a beneficiary's action to recover trust property is exempt under section 20(1), the trustee's possession being deemed the beneficiary's (Halsbury's Laws of England, 4th ed., vol. 28), and that Silas, who knew of the earlier dealings, could not successfully plead limitation.
What share of the suit land may an unmarried daughter receive under Kimeru Customary Law?
One portion amounting to one-quarter of the suit land, which must not include the house Silas has built; the parties are to agree on the physical portion, with liberty to apply to the superior court in default of agreement.
The suit land, approximately 0.40 hectare, belonged to Sarah who had adopted Margaret. In accordance with Kimeru Customary Law, which allows an unmarried daughter a limited share, the court awarded Margaret one-quarter of the parcel, carving out Silas's stone house. The physical demarcation was left to the parties' agreement, with liberty to apply to the superior court should they fail to agree.
Legal principles established
#- Customary law must be proved by the party invoking it unless it is of such general notoriety that judicial notice may be taken of it under section 60 of the Evidence Act (Cap. 80).
- A court will not imply a trust unless it is absolutely necessary to do so; where customary law does not allow an unmarried daughter to inherit the whole of the land in dispute, no trust over that land can be implied in her favour.
- A female who cannot inherit land under the applicable customary law cannot be a beneficiary of that land upon an implied trust; the law cannot presume a trust making her sole owner, customary law allowing at most a limited share for a limited duration.
- A trial judge is bound to determine every issue that falls for determination, including pleaded and agreed issues such as limitation.
- Limitation does not bar a beneficiary's action in respect of trust property, the trustee's possession being deemed the beneficiary's possession.
- Under Kimeru Customary Law a will may be made by an owner who is very old or on his/her death-bed and is valid only if made before clan elders, close relatives and friends, declaring the 'Mukuru mwene nja' and appointing a 'murungamiiri'.
- When a court applies customary law to the devolution of property on death, the exclusion of daughters from inheriting land is sanctioned by section 82(4) of the Constitution.
Court orders
#- 1.Appeal allowed in part: the High Court's declaration of an implied trust in Margaret's favour displaced and, in accordance with Kimeru Customary Law, Margaret awarded one portion of the suit land - one-quarter of L.R. Abothoguchi/Katheri/1633 - which portion must not include the house built by Silas.
- 2.The parties to agree on the physical portion of the suit land to be given to Margaret; failing agreement, liberty to any of them to apply to the superior court to decide which portion should go to Margaret.
- 3.No order as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the lead judgment. Held that Kimeru (Meru) customary law is patrilineal and excludes daughters from inheriting land save for a limited share; that no trust arose in Margaret's favour from the succession proceedings or otherwise, a trust being implied only when absolutely necessary; that Sarah left no valid customary oral will; that the trial judge misdirected himself in declaring the trust without evaluating the evidence and failed to decide the pleaded limitation issue; and that Margaret should receive one-quarter of the suit land excluding the house built by Silas, with no order as to costs.
It is settled law that a court will not imply a trust unless it is absolutely necessary to do so and when Meru Customary Law docs not allow an unmarried daughter to inherit whole of the land in dispute no trust in respect of such land can be implied.p. 2
Wrote the judgment
In a short separate judgment, agreed with the draft judgment of Shah, JA that the appeal should be partly allowed in the terms proposed, and ordered accordingly.
I have had the advantage of reading in draft the judgment of Shah, J.A. and I agree that this appeal should be partly allowed in the terms proposed in his judgment. It is so ordered.p. 3
Wrote the judgment
In a short separate judgment, agreed with the draft judgment of Shah, JA and added nothing.
I have had the advantage of reading and considering in draft the judgment of His Lordship Shah, J.A. I agree with him and have nothing useful to add.p. 4
- On appeal from
- High Court of Kenya at Meru
- H.C.C.C. No. 380 of 1994
- Jurisdiction invoked
- First appeal from the High Court to the Court of Appeal; the judgment does not expressly cite the constitutional or statutory provision conferring appellate jurisdiction.
Relief refused
#Margaret's claim to the whole suit land as sole beneficiary of an implied trust
A court will not imply a trust unless absolutely necessary; where customary law does not allow a female to inherit land, no trust making her sole owner can be presumed, and the succession proceedings created no trust in her favour.
Reliance on Sarah's alleged death-bed statement as an oral will bequeathing the suit land to Margaret
The statement did not amount to a valid will; most of the requirements for a valid oral will under Kimeru Customary Law were not complied with.
Costs of the appeal
Although the appeal was allowed in part, the court made no order as to costs.
Costs
No order as to costs (each party to bear their own costs).
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.
Accordingly, I would allow the appellants’ appeal only to the extent set out above but make no order as to costs.
I would award to 'her, in accordance with Kimeru Customary Law one portion of the suit land which portion must not include the house that Silas has built on the suit land. That portion would be one-quarter of the suit land.
If the parties are unable to agree there will be liberty to any of them to apply to the superior court to decide which portion should go to Margaret.
It is settled law that a court will not imply a trust unless it is absolutely necessary to do so and when Meru Customary Law docs not allow an unmarried daughter to inherit whole of the land in dispute no trust in respect of such land can be implied.
My answer therefore to the question I posed earlier in this judgment is that if a fernale cannot inherit land she cannot be said to be beneficiary of such land upon an implied trust.
The existence of such law, unless it has become of such general notoriety that judicial notice may be taken of it under section 60 of the Evidence Act Cap.80, must be proved by the person invoking it in precisely the same way that a person invoking customary rights has to prove the custom.
It is the duty of the Judge to decide an issue which falls for determination.
From what I have said so far it is obvious that there being no trust in favour of Margaret and there being no valid will by Sarah, the suit land was rightly granted to Mukindia.
The reason for this is that the trustee's possession is deemed to be the beneficiary's possession.
Issues in the judgment
#The judgment states it will later address the duration of the unmarried daughter's share, but the final orders award the one-quarter portion without specifying any duration or conditions attached to it.
The quotation of subsection (4) of section 82 of the Constitution in the judgment contains two subparagraphs both labelled '(b)', an apparent transcription error in the quoted constitutional text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mukindia Kimuru & another v Margaret Kanario [2000] KECA 371 (KLR)", Case Analysis (2000). Civil Appeal No. 19 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/371/eng@2000-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.