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Court of AppealPartially AllowedCivil Appeal No. 44 of 2014· [2015] KECA 874 (KLR)

Edith Gichungu Koine v Stephen Njagi Thoithi & another [2015] KECA 874 (KLR)

Court of Appeal of Kenya
17 March 2015
AVAlnashir VisramMartha Karambu KoomeM.K. KoomeJOJ. Otieno-Odek
5,351 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that customary family trust claims can override registered land titles, but only for family members actually living on and occupying the land.

What this practically means

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Executive summary

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This was a second appeal from the High Court at Nyeri (Sergon, J.), which had allowed the respondents' first appeal, set aside the trial magistrate's dismissal, and ordered the appellants (widows substituted for their deceased husband, the registered proprietor of Land Parcel No. Mutira/Kaguyu/126, measuring 7.5 acres) to transfer 2 acres each to the respondents on the basis of a customary trust. The Court of Appeal identified two issues of law: whether there was evidence of a customary trust, and in what portions. The Court affirmed that customary trust is an overriding interest over registered land, drawing on Gatimu Kinguru v Muya Gathangi, Kanyi v Muthiora and Mbui Mukangu v Gerald Mutwiri Mbui, and held that absence of a trust notation on the register does not defeat an enforceable trust. It agreed that the 2nd respondent, being a son of Kiragu Thoithi of the same house as the deceased and in occupation, proved a customary trust and was entitled to 2 acres, which the Court did not disturb since he did not cross-appeal. However, the Court parted company with the High Court regarding the 1st respondent: he belonged to the house of Wachuka whose clan land (Mutira/Kaguyu/125) had been allocated to his brother Kathaka, and he had not been in occupation since his eviction in 1971. Possession and occupation being critical in customary trust claims, the Court set aside the High Court judgment to the extent of the 2 acres awarded to the 1st respondent. The appeal partially succeeded. The appellant was ordered to transfer 2 acres to the 2nd respondent within six months, with the Deputy Registrar to sign transfer documents on default. As a family matter, each party was to bear their own costs, with the 2nd respondent bearing the costs of partition.

Key legal issues

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01

Whether customary trust constitutes an overriding interest over registered land notwithstanding first registration

Holding

Yes. A customary trust is an overriding interest over registered land and a registered proprietor is not relieved of obligations as trustee by the registration provisions.

Reasoning

The Court traced the doctrine from Gatimu Kinguru v Muya Gathangi through Kanyi v Muthiora, holding that registration pursuant to custom does not extinguish the rights of beneficiaries under customary law, and that provisions requiring reference to a trust in the register are permissive, not mandatory.

p. 7
02

Whether the deceased held the suit land in trust for the 2nd respondent

Holding

Yes. The 2nd respondent and his brothers are in occupation as children of Kiragu Thoithi, the deceased's brother of the same house, and the customary trust was proved.

Reasoning

The Court agreed with the High Court Judge that the 2nd respondent's case was proved. The 2nd respondent was in occupation in his own right as a child of Kiragu Thoithi from the same house of Wanjiru. The Court declined to interfere with the 2-acre award to the 2nd respondent because he did not cross-appeal and customary law may award the trustee/muramati a slightly larger share.

p. 7
03

Whether the deceased held the suit land in trust for the 1st respondent

Holding

No. The 1st respondent belonged to the house of Wachuka, whose land was allocated to his brother Kathaka, and his long absence from occupation defeated the claim.

Reasoning

The Court found the 1st respondent was evicted in 1971 and had not been in occupation for almost 45 years. Possession and occupation are critical in customary trust claims. The clan land due to the patriarch's house of Wachuka had been allocated to Kathaka under Mutira/Kaguyu/125, so the 1st respondent should have pursued his claim from his own brother, not the deceased.

p. 7
04

Whether the respondents' claim was time barred

Holding

No. Section 20(1) of the Limitation of Actions Act excludes limitation periods for actions by a beneficiary under a trust, which is a continuing trust.

Reasoning

The High Court Judge found the magistrate misapprehended the facts on delay, and that section 20(1) of the Limitation of Actions Act protects beneficiaries under a trust. Because the fiduciary position is a continuing trust, time is difficult to begin running. This finding was not disturbed by the Court of Appeal.

p. 4

Legal principles established

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  • On a second appeal, the Court confines itself to matters of law and will not interfere with findings of fact by the two courts below
  • A principle of customary trust is recognized as an overriding interest over registered land notwithstanding first registration
  • Possession and occupation of the suit land is a critical consideration when dealing with a claim under customary trust
  • A beneficiary under a continuing trust is not defeated by the limitation periods in the Limitation of Actions Act

Court orders

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  1. 1.The appeal partly succeeds
  2. 2.The judgment of the High Court is set aside to the extent that it ordered transfer of 2 acres to the 1st respondent
  3. 3.The appellant do transfer 2 acres to the 2nd respondent in his capacity as the son of Kiragu Thoithi, taking into account the portion with their developments, within 6 months from the date of the judgment
  4. 4.The 2nd respondent will bear the costs of the partition
  5. 5.Failure by the appellants to comply, the Deputy Registrar of the High Court is ordered to sign all the requisite transfer documents
  6. 6.Each party to bear their own costs

Authorities

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Legislation

  • Limitation of Actions ActSection 20(1)
  • Registered Land Act (Cap 300)Section 28
  • Registered Land Act (Cap 300)Section 126
  • Registered Land Act (Cap 300)Section 143(1)
  • Registered Land Act (Cap 300)Section 30(g)
  • Registered Land Act (Cap 300)Section 163

Cases cited (5)

  • Muthuita vs Wanoe
    [1982] KLR 166
  • Kenya Breweries Limited vs Godfrey Odoyo
    Civil Appeal No. 127 of 2007
  • Gatimu Kinguru v Muya Gathangi
    [1976] KLR 253
  • Kanyi v Muthiora
    [1984] KLR 712
  • Mbui Mukangu v Gerald Mutwiri Mbui
    [2004] eKLR
On appeal from
High Court of Kenya at Nyeri
H.C.C.A. No. 41 of 2008
Jurisdiction invoked
Second appeal to the Court of Appeal under the applicable appellate framework (no specific provision cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Edith Gichungu Koine v Stephen Njagi Thoithi & another [2015] KECA 874 (KLR)", Case Analysis (2015). Civil Appeal No. 44 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/874/eng@2015-03-17

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