Sebastian Kaweto Kalovwe & another v Patrick Mulevu Kaweto [2019] KECA 143 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that land registration cannot wipe out a proven customary trust, and dismissed the family's challenge.
What this practically means
#Executive summary
#Key legal issues
#Whether a customary trust existed over the suit land notwithstanding first registration in the deceased's sole name
The finding of a customary trust in favour of the respondent was affirmed; the deceased's evidence was contradictory and untruthful while the respondent discharged his burden by showing the land was ancestral
The Court held that the existence of customary law is a question of fact not open on second appeal. The deceased's own evidence contained material contradictions, including admissions that he lied on oath. The respondent called witnesses, including the Land Registrar with first-hand knowledge of the adjudication, showing the land was ancestral and that the deceased clandestinely registered himself as sole proprietor. Relying on Mbui Mukangu and the Supreme Court's Kiebia decision, registration does not extinguish a proved customary trust.
Whether the burden of proof was shifted to the deceased
No; the deceased as the party asserting purchase for value bore the burden of proving it, which he failed to discharge
The Court applied Section 107 of the Evidence Act: a party asserting facts to found a legal right must prove them. The deceased claimed he purchased the parcels for substantial sums in the 1970s or 1980s but produced no documentary or other proof, and his testimony was riddled with contradictions. The respondent, by contrast, discharged his burden of proving ancestral land and trust through credible witnesses including the Land Registrar involved in the adjudication process.
Whether the trial magistrate had pecuniary jurisdiction over the declaratory trust claim
The magistrate had jurisdiction: the claim was one under customary law within magistrates' jurisdiction, no evidence of land value was adduced, and the jurisdictional objection was raised too late
The Court noted no evidence of the value of the suit property was adduced at trial or on appeal; the dispute revolved around a customary trust claim. Section 2 of the repealed Magistrates Courts Act (Cap 10) and Section 7(3) of the Magistrates Courts Act No. 26 of 2015 vest jurisdiction in magistrates' courts over claims under customary law, including land held under customary tenure. Citing Owners of the Motor Vessel Lilian 'S', jurisdictional challenges are questions of law to be raised at the earliest opportunity.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to matters of law and will not interfere with findings of fact unless the lower courts considered matters they should not have, failed to consider matters they should have, or the decision is perverse
- The existence of a customary law governing a dispute is a question of fact, and a finding of customary trust will not be disturbed on second appeal
- Registration of land does not extinguish a customary trust; a customary trust, once proved to subsist, binds a first registered proprietor under the proviso to Section 28
- A challenge to a court's jurisdiction is a question of law and must be raised at the earliest opportunity during the trial
- Magistrates' courts have jurisdiction to determine claims under customary law, including land held under customary tenure
Court orders
#- 1.The appeal is dismissed
- 2.Costs awarded to the respondent
- On appeal from
- High Court at Machakos
- Machakos HCCA No. 62 of 2001
- Jurisdiction invoked
- Section 72(1) of the Civil Procedure Act - second appeal confined to matters of law
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Power & Lighting Co Ltd v Julius Muthuri Cyprian & 2 others [2021] KEELC 3740 (KLR)[2021] KEELC 3740 (KLR)14 Apr 2021followed
Cite this brief
#Cite this brief
Caselaw, "Sebastian Kaweto Kalovwe & another v Patrick Mulevu Kaweto [2019] KECA 143 (KLR)", Case Analysis (2019). Civil Appeal No. 219 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/143/eng@2019-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.