Edward Njane Ng’ang’a & another v Damaris Wanjiku Kamau & another [2019] KECA 13 (KLR)
The bottom line
#Kenya's Court of Appeal cancelled a land title bought from a mother who sold inherited family land without her sons' consent, confirming customary trusts bind registered owners.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the parcel of land in dispute (LOC 9/Kiruri/2095) comprised family land held by Ruth Wanjiku Ng’ang’a in trust for the family
- 2.Whether the Court of Appeal, on a second appeal, could interfere where the courts below failed to consider evidence that the land was family land
Key legal issues
#Scope of the Court of Appeal's jurisdiction on a second appeal
The Court may consider only issues of law, not matters of fact already evaluated by the trial court and the first appellate court; however, failure by the courts below to consider relevant evidence raises a question of law.
Relying on Kenya Breweries Ltd v Godfrey Odoyo quoting Selle & Another v Associated Motor Boat Company Ltd, the Court held its mandate on second appeal excludes re-evaluation of facts. The single live issue of law identified was whether the land was family land held in trust, which the respondents' counsel conceded was a legal issue.
Whether the disputed parcel was family land held in trust by the appellants' mother
The evidence established that the land was inherited family land; the mother, as registered proprietor, was bound by a customary/family trust and had a duty to seek the appellants' consent before selling.
The 2nd appellant testified the land was family land originally held by their grandfather in trust; the mother admitted the land was inherited land and had been registered only because her husband died in 2011. The trial magistrate considered only the title and sale, and the Judge erred in ignoring this evidence. The appellants had rights to inherit under the Law of Succession Act.
Status of customary trusts as overriding interests under the land registration statutes
Following the Supreme Court's declaration in Isack M’Inanga Kiebia v Isaaya Theuri M’Lintari, customary trusts are overriding interests to which registered proprietors are subject, and the earlier decisions in Obiero v Opiyo and Esiroyo v Esiroyo were wrongly decided.
The Court adopted the Supreme Court's finding that the language of Section 117(2) of the retired Constitution was wrongly imported into Sections 27, 28 and 30 of the Registered Land Act, and that the elements of customary trust remain to be fully developed but are provable by evidence and bind first registration. Overriding interests under Section 30 of the repealed Registered Land Act are replicated in Section 28 of the Land Registration Act, 2012.
Legal principles established
#- On a second appeal the Court of Appeal is confined to matters of law and will not disturb concurrent findings of fact unless the courts below considered matters they should not have considered, failed to consider matters they should have considered, or the decision is perverse.
- A customary trust, once proved, is an overriding interest binding a registered proprietor under the proviso to Section 28 of the Land Registration Act, and the categories of customary trust are not closed.
Court orders
#- 1.The appeal is allowed
- 2.The title issued after the sale of the land by Ruth Wanjiku Ng’ang’a to the respondents is cancelled
- 3.The title that existed before that transfer is reinstated
- 4.The appellants are awarded the costs of this appeal and the costs below
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nyeri
- Civil Appeal No. 8 of 2013 (from Misc. Cause No. 44 of 2014 as cited in the header; the underlying first appeal was from Principal Magistrate’s Court at Kangema, Civil Case No. 124 of 2011)
- Jurisdiction invoked
- Second appeal limited to matters of law (appellate jurisdiction over second appeals from the High Court; mandate that this Court 'only consider issues of law but not matters of fact')
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.
In the premsies, we find that the trial magistrate was wrong in the findings that she made and the learned Judge erred in ignoring the evidence that was on record showing that he was dealing with family land. In the event, this appeal has merit and we allow it.
The title issued after the sale of the land by Ruth Wanjiku Ng’ang’a to the respondents Damaris Wanjiku Kamau and Joseph Kamau Mwangi shall be cancelled and the title that existed before that transfer is hereby reinstated. The appellants will have costs of this appeal and the costs below.
we now declare that a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the trusts to which a registered proprietor, is subject under the proviso to Section 28 of the Registered Land Act.
The categories of a customary trust are therefore not closed. It is for the court to make a determination, on the basis of evidence, as to which category of such a trust subsists as to bind the registered proprietor.
Issues in the judgment
#The name of the High Court judge appears in two different spellings within the judgment
The date of the High Court judgment differs between the header (9 July 2015) and the body (29 June 2015)
The High Court appeal is described as being 'at Nyeri' in the body but the header references the High Court 'at Nairobi' in Misc. Cause No. 44 of 2014
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edward Njane Ng’ang’a & another v Damaris Wanjiku Kamau & another [2019] KECA 13 (KLR)", Case Analysis (2019). Civil Appeal No. 16 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/13/eng@2019-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.