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Court of AppealDismissedCivil Appeal No. 227 of 2005

Joseph Gitau Githongo v Victoria Mwihaki Munya [2014] KECA 366 (KLR)

Court of Appeal of Kenya
3 October 2014
EGE. M. GithinjiDMD. K. MusingaKMK. M'inoti
4,004 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that land registration does not defeat customary inheritance rights, so an unmarried daughter could claim 3 acres held in trust for her.

What this practically means

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Executive summary

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This first appeal from the High Court (Mugo, J.) concerned a 12-acre Kiambu parcel registered in 1958 in the appellant's name under the repealed Registered Land Act, cap 300. The appellant sued for his sister's eviction and damages for trespass, contending that under Kikuyu customary law a married daughter cannot inherit her father's property. The High Court dismissed the suit and the adverse-possession limb of the counterclaim, but declared that the appellant held 3 acres occupied by the respondent in trust for her, and ordered subdivision and registration in her name. The Court of Appeal identified three issues: the alleged customary marriage to one Rieu, the respondent's inheritance rights under Kikuyu customary law, and the trust. The court affirmed that the burden of proving customary law lies on the party relying on it, and held that dowry payment alone, without evidence of the Ngurario ceremony and marriage formalities, did not prove a valid Kikuyu customary marriage; nor could marriage be presumed from cohabitation where the parties had not lived together for some fifty years. Applying Kanyi v Muthiora, the court held that registration did not extinguish customary rights or relieve the proprietor of trusteeship duties, and, following Njuguna v Njuguna, that the appellant as first-born son was a 'Muramati' obliged to hold and distribute the respondent's share, unmarried daughters being entitled to inherit. The uncontroverted claim to 3 acres was upheld. The appeal was dismissed with costs to the respondent on 3rd October 2014.

Questions the Court framed

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

  1. 1.Whether the learned trial judge erred in holding that the respondent was not married to Rieu
  2. 2.Whether the respondent was entitled to a share of the suit property under Kikuyu customary law
  3. 3.Whether the appellant held 3 acres of the suit property in trust for the respondent

Key legal issues

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01

Validity of an alleged Kikuyu customary marriage

Holding

The appellant failed to prove the alleged customary marriage between the respondent and Rieu; payment of dowry alone, evidenced sketchily and uncorroborated, is insufficient without proof of the critical Ngurario ceremony and related formalities.

Reasoning

The essentials of a valid Kikuyu customary marriage are well settled: part of the ruracio (dowry) must be paid and, conclusively, the Ngurario ram must be slaughtered. The appellant, the sole witness, gave sketchy evidence of dowry but led no evidence of the Ngurario ceremony or the elaborate negotiation and marriage formalities. The trial judge's finding, supported by the naming pattern of the respondent's children and the timing of their births, that no marriage existed could not be faulted.

p. 3
02

Presumption of marriage from cohabitation

Holding

No marriage could be presumed because there was no credible evidence of long cohabitation as husband and wife.

Reasoning

Although Kenyan law recognises that long cohabitation can give rise to a presumption of marriage, even under customary law, the evidence here was woefully inadequate: the parties' accounts of the cohabitation period conflicted, and even on the appellant's version the parties had not lived together for some 50 years before Rieu's death, combined with the finding that the children were born out of wedlock.

p. 4
03

Trust under section 28 of the Registered Land Act and Kikuyu customary law ('Muramati')

Holding

Registration as absolute proprietor did not relieve the appellant of his customary law obligation as 'Muramati' to hold the portion occupied by the respondent in trust for her, and there was no bar to her inheriting land as an unmarried daughter.

Reasoning

Under section 28 of the repealed Registered Land Act, registration confers absolute title subject to the proviso that it does not relieve a proprietor of duties as trustee; Kanyi v Muthiora holds this includes customary law trustees and does not extinguish customary rights. As first born son, the appellant was 'Muramati' obliged to distribute the respondent's share under the rules of intestacy, her unmarried status not barring inheritance.

p. 4
04

Proof of the 3-acre share

Holding

The respondent's pleaded occupation of 3 acres was uncontroverted, no defence to the counterclaim having been filed and no evidence led to displace it.

Reasoning

The respondent pleaded the 3-acre area in her counterclaim and sought a declaration over it. The appellant neither filed an answer and defence to the counterclaim nor led evidence to controvert the claim, so the trial judge was justified in finding the issue proved on the pleadings and uncontroverted evidence.

p. 4

Legal principles established

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  • On a first appeal, the appellate court is enjoined to revisit, analyze and evaluate the evidence afresh and come to its own independent conclusion, while making allowance for the trial court's advantage of seeing and hearing the witnesses.
  • The burden of proving a customary law rule rests on the party who relies on that custom in support of his case.
  • Registration of land under the (repealed) Registered Land Act does not extinguish customary law rights and does not relieve a proprietor of duties or obligations as a trustee, including a trustee under customary law; the trustee referred to in section 28 includes a customary law trustee.
  • Under Kikuyu customary law, unmarried daughters are entitled to inherit land from their fathers; where an unmarried daughter has an illegitimate child, that child inherits her share and she acquires an absolute, not a life, interest.
  • The eldest son, as 'Muramati', inherits land to hold it in trust for himself and the other heirs, must distribute shares according to the deceased's wishes or the rules of intestacy, and is not entitled to remuneration.
  • Long cohabitation as man and wife gives rise to a presumption of marriage, even under customary law, rebuttable only by cogent evidence to the contrary.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent
  2. 2.The judgment of the High Court (Mugo, J.) of 14th July 2005, including the declaration of trust and order for subdivision and registration of 3 acres in the respondent's name, is upheld

The bench

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

EG
majority

Wrote the judgment

DM
majority

Wrote the judgment

KM
majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 810 of 1992
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 100, by consent, written submissions)

Relief refused

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Appellant's claim for eviction of the respondent and damages for trespass

The High Court had dismissed the appellant's suit and the Court of Appeal found no merit in the appeal; the respondent was not a trespasser but a beneficiary of a trust

p. 4

Appellant's plea of a presumption of marriage between the respondent and Rieu by cohabitation

No credible evidence of cohabitation; the parties had not lived together from 1952 to 2002

p. 4

Costs

The appeal is dismissed with costs to the respondent.

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.

We have come to the conclusion that this appeal has no merit and the same is hereby dismissed with costs to the respondent.
p. 4Disposition - appeal dismissed with costs
Ultimately therefore, we find that upon registration of the appellant as the proprietor of the suit property, he held the portion of the suit property occupied by the respondent in trust for her.
p. 4Trust under customary law notwithstanding registration
The burden is upon a party who wishes to rely on customary law to prove the custom in question.
p. 2Burden of proving customary law
This being a first appeal, we are enjoined to revisit the evidence that was before the trial court afresh, analyze it, evaluate it and come to our own independent conclusion.
p. 2Duty of a first appellate court
It is certainly odd to ask the court to presume a marriage in respect of people who had not cohabited as husband and wife for a period of 50 years.
p. 4Presumption of marriage from cohabitation
The Court further held that the trustee referred to in section 28 of the Act included a trustee under customary law.
p. 4Section 28 Registered Land Act - customary trustees

Issues in the judgment

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minor

The case caption misspells the respondent's name ('REPONSDENT') and the judgment alternates between 'Mwihaki' and 'Mwhihaki' for the respondent, and between 'Gichuru' and 'Gichuki' for the appellant's counsel.

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, "Joseph Gitau Githongo v Victoria Mwihaki Munya [2014] KECA 366 (KLR)", Case Analysis (2014). Civil Appeal No. 227 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/366/eng@2014-10-03

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