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Court of AppealDismissedCivil Appeal 46 of 2017· [2022] KECA 371 (KLR)

Omotto v Oduor

Court of Appeal
18 February 2022
PKP O KiageKMK M'InotiMNMumbi Ngugi
4,310 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that claiming family land is held under customary trust requires solid evidence, not just family history.

What this practically means

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Executive summary

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This first appeal concerned a dispute between sisters-in-law over land parcel Marachi/Kingandole/16. The appellant, widow of the younger brother, claimed the land was held by the respondent's deceased husband (the eldest son) under a Luhya/Marachi customary trust and sought its transfer to her. The Environment and Land Court (Kibunja J) dismissed her suit, finding the respondent's husband was the first and only registered proprietor, that each brother was registered with a separate parcel, and that the appellant had neither proved adverse possession nor properly pleaded a customary trust. The Court of Appeal (Kiage, M'Inoti and Ngugi JJA) dismissed the appeal. It held that the trial court's finding that a customary trust claim should be brought by plaint was not the basis of its decision, since the court had considered the case on its merits, and that the complaint about the interlocutory judgment was unfounded as the respondent's replying affidavit was properly admitted. On the substantive claim, the Court applied the Supreme Court's five elements for a customary trust in Isack M'inanga Kiebia and held the appellant had failed to lead evidence establishing that the respondent's husband was registered in trust for her spouse. No fraud was shown; no objection was made to adjudication; and the brothers' conduct indicated an intention to retain their respective parcels. As a family matter, the Court directed that each party bear its own costs of the appeal. The judgment affirms that customary trusts are overriding interests over registered land but must be proved by evidence, and that a certificate of title is prima facie evidence of indefeasible ownership subject only to encumbrances, overriding interests, fraud or corruption.

Key legal issues

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01

Pleading of customary trust claims by originating summons

Holding

The trial court's finding that a customary trust claim should be brought by plaint did not affect the outcome because it went on to decide the case on its merits.

Reasoning

The Court observed that although the trial court found the claim should have been brought by plaint, that was not the basis of the final decision; the trial court considered the appellant's case on its merits, so the technical ground of appeal failed.

02

Existence of a customary trust over registered land

Holding

The appellant failed to prove the elements of a customary trust; the brothers' registration of separate parcels and their conduct indicated an intention to retain the parcels registered in their names.

Reasoning

Applying the Supreme Court's elements in Isack M'inanga Kiebia, the Court found no evidence of fraud or of registration in trust. No objection was made to adjudication, no claim was lodged during the brothers' lifetimes, and the brothers did not seek to exchange the lands, showing they intended to retain their respective parcels.

p. 7
03

Indefeasibility of first registration subject to overriding interests

Holding

A certificate of title is prima facie evidence of absolute and indefeasible ownership, subject to encumbrances and overriding interests such as customary trusts, and challengeable only on fraud or corruption grounds.

Reasoning

The Court restated the protection of the registered proprietor under the repealed Registered Land Act and section 26 of the Land Registration Act, while noting customary trusts as overriding interests under section 30(g) of the former Act and section 28(b) of the 2012 Act.

Legal principles established

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  • A customary trust is an overriding interest recognised under the Registered Land Act and section 28(b) of the Land Registration Act, 2012, but must be proved by evidence led before the court.
  • On a first appeal, the Court of Appeal is under a duty to re-appraise the evidence and draw inferences of fact.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party bears its own costs of the appeal

Authorities

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Legislation

  • Land Registration Actsection 25(2)
  • Land Registration Actsection 28(b)
  • Land Registration Actsection 26
  • Land Registration Actsections 106 and 107
  • Judicature Actsection 3(2)
  • Environment and Land Court Actsection 18(a)(ii)
  • Registered Land Act (repealed)Cap 300, sections 27, 28 and 30(g)
  • Civil Procedure RulesOrder 37 Rule 8
  • Court of Appeal RulesRule 29(1)

Cases cited (3)

  • Theuri v Law Society of Kenya
    (1988) KLR 334
  • Selle & Another v Associated Motor Boat Co. Limited
    [1986] EA 123

    The duty of a first appellate court to re-appraise evidence and draw inferences of fact.

  • Isack M'inanga Kiebia v Isaaya Theuri M'lintari & Another
    [2018] eKLR

    Elements required to establish a customary trust as an overriding interest over registered land.

On appeal from
Environment and Land Court at Kisumu
ELC Case No. 173 of 2014 (formerly HCCC No. 27 of 2012)
Jurisdiction invoked
First appeal under Rule 29(1) of the Court of Appeal Rules

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, "Omotto v Oduor", Case Analysis (2022). Civil Appeal 46 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/371/eng@2022-02-18

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