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Court of AppealDismissedCivil Appeal No. 4 of 2016· [2020] KECA 142 (KLR)

Burhan Ali Mansur v Mumin Mahmoud Mwanzi & 7 others [2020] KECA 142 (KLR)

Court of Appeal of Kenya
4 December 2020
3,250 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that registering family land in your name does not defeat an unwritten customary trust benefiting relatives.

What this practically means

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Executive summary

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This Court of Appeal judgment (Okwengu, Kiage and Sichale, JJ.A) dismissed an appeal by Burhan Ali Mansur against the Environment and Land Court at Nyeri (Waithaka, J), which had allowed an Originating Summons by his cousins declaring that he held four subdivided parcels of their ancestral Nyeri land (LR Aguthi/Gatitu/2438, 2442, 2443 and 2444) in trust for the families of Mahmoud Sheikh Mwanzi and Asha Binti Mwanzi, and had dismissed the appellant's consolidated suit for eviction. The appeal raised two issues: whether the appellant, as son and administrator of the registered proprietor Fatuma, held the suit properties in trust, and whether the confirmed Succession Cause grant conferred beneficial ownership on him. Applying the Supreme Court's five-element test in Isack M'inanga Kiebia v Isaaya Theuri M'Lintari, the Court found the respondents proved on a balance of probabilities that Sheikh bought the original land and registered it in Fatuma's name to hold in trust for her siblings, and that the appellant adduced no controverting evidence. It held that a first registration is not indefeasible against pre-existing customary trust rights, that the succession grant made the appellant an administrator only and did not extinguish the trust, that limitation does not run against customary trust claims, and that trust as an equitable remedy applies regardless of the parties' Islamic faith. The judgment below was affirmed in its entirety; as a family dispute, each party was ordered to bear its own costs.

Key legal issues

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01

Whether the appellant held the suit properties in trust for the respondents

Holding

Yes. The respondents proved on a balance of probabilities that the original land was bought by Sheikh and registered in Fatuma's name by convenience to hold in trust for Mahmoud and Asha; the elements of customary trust were satisfied.

Reasoning

The court applied the five Kiebia elements: parties belong to the same family, satisfying the second, third and fifth elements; and the evidence of PW1, PW2 and PW3, together with Fatuma's 1990 letter and the appellant's failure to controvert it, proved family ownership of the original land and the trust. The appellant produced no evidence to displace the trust.

p. 4
02

Whether a first registration renders the appellant's beneficial claim indefeasible

Holding

No. First registration does not defeat pre-existing customary trust rights; the trust subsists as an overriding interest under section 28 of the Registered Land Act.

Reasoning

Relying on the Supreme Court's Kiebia decision, the court held that a customary trust under the proviso to section 28 binds a first registered proprietor. The Succession Cause made the appellant an administrator only and did not extinguish the pre-existing trust; hence he acquired no beneficial ownership.

p. 4
03

Whether limitation barred the respondents' trust claim

Holding

No. Time does not run against a customary law trust claim, whether the trust is noted on the register or not.

Reasoning

Following this Court's decision in Esther Nyamweru Waruhiu v George Kang'ethe Waruhiu, the court held the limitation ground had no merit, since limitation does not run against customary law trust claims regardless of registration of the trust.

p. 4
04

Whether a customary trust can exist among parties of the Islamic faith

Holding

Yes. Trust is an equitable remedy applying to all regardless of faith, and the judge had founded the trust on Islamic customary law.

Reasoning

The court rejected the appellant's argument that Islamic law excluded customary trust, noting that trust as an equitable principle applies universally and that the trial judge had expressly grounded the trust in Islamic customary laws.

p. 4

Legal principles established

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  • A first registration of land is not indefeasible as against pre-existing customary trust rights binding the registered proprietor.
  • The statute of limitation does not run against a customary law trust claim, whether or not the trust is noted on the register.
  • A grant of administration conferring administrator status over an estate does not extinguish a trust created prior to the first registration of the estate land.
  • Before affirming a customary trust, a court must be satisfied of the five elements set out by the Supreme Court in Isack M'inanga Kiebia v Isaaya Theuri M'Lintari.

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.Each party bears its own costs

Authorities

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Legislation

  • Evidence ActSection 109
  • Evidence ActSection 34
  • Evidence ActSection 44(1)(d)
  • Registered Land ActSection 28
  • Registered Land ActSection 30(g)

Cases cited (4)

  • Selle v Associated Motor Boat Co
    [1968] EA 123
  • Mogonchi v Mogonchi
    [2004] eKLR
  • Isack M'inanga Kiebia v Isaaya Theuri M'Lintari & Another
    [2018] eKLR
  • Esther Nyamweru Waruhiu & Another v George Kang'ethe Waruhiu
    [2019] eKLR
On appeal from
Environment and Land Court of Kenya at Nyeri
ELC No. 67 of 2015 (Consolidated with Nyeri HCCC No. 23 of 2012)
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Constitution of Kenya, Article 164) against the judgment of the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Burhan Ali Mansur v Mumin Mahmoud Mwanzi & 7 others [2020] KECA 142 (KLR)", Case Analysis (2020). Civil Appeal No. 4 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/142/eng@2020-12-04

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