Mbanda & 3 others v Mbanda & another

The Court noted the appellants merely lamented about the judge's interpretation of representative suit principles without substantiation. A perusal of the plaint revealed no averment that the respondents sued on behalf of a group. Order 1 Rule 9 of the Civil Procedure Rules provides that no suit shall be defeated by misjoinder or non-joinder, and the court may deal with the matter as regards parties actually before it. This limb of the appeal was therefore without merit.

Applying the Supreme Court's five-element test in Kiebia v M'lintari, the Court found parcel 2513 originated from ancestral parcel 654 issued at initial adjudication; it was registered in the 1st appellant's name, the claimant's father; the 1st respondent and his brothers were in actual occupation; and the claim was against a family member as registered proprietor. The former Obiero v Opiyo and Esiroyo v Esiroyo position that registration extinguishes customary rights was displaced by Kiebia, which held those decisions rested on faulty premises. Customary trust survives registration as an overriding interest under section 28 of the Land Registration Act.

The Court traced the shift from Obiero v Opiyo and Esiroyo v Esiroyo, which held customary rights extinguished on registration, to Kiebia v M'lintari, which found those decisions conceptually and contextually flawed for ignoring trust land provisions of the retired Constitution. Under the proviso to section 28 of the repealed Registered Land Act, now codified in section 28(b) of the Land Registration Act 2012, customary trusts remain overriding interests. The 1st appellant's long-occupation dealings without the 1st respondent's consent were therefore impermissible.