Faith Waruguru & 3 others v Mugane Njagi & 3 others [2017] KEELC 2019 (KLR)
The bottom line
#A Kenyan court ruled that a brother held family land in trust for his sisters, and registering it in his children's names could not defeat their claim.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The doctrine does not apply because the trust and fraud issues now raised could not have been determined by the Tribunal, which lacked jurisdiction over them
Although the same land was the subject of LDT Case No. 43 of 2010, the present claim is founded on trust and fraud. The Land Disputes Tribunal under the repealed Act had no jurisdiction to determine trust or ownership of registered land, so those issues were never heard and finally decided. The defendants also abandoned the plea, not pursuing it in submissions.
Customary trust
A trust was established: the land was registered in the 1st defendant's name at age ten because the father died before demarcation and land was not registered in women's names; he holds the suit land in trust for the plaintiffs
The plaintiffs discharged the burden of proving the trust: the 1st defendant was registered while a minor for the family, the plaintiffs lived on and worked the land, and no evidence showed acquisition as personal property. Registration does not extinguish trustee obligations under Section 25 of the Land Registration Act and Section 28 of the repealed Registered Land Act. Denial of registration to the plaintiffs because they are married women contravenes constitutional non-discrimination and property rights.
Fraud and nullity of the joint registration
Fraud was strictly proved: after the plaintiffs removed their caution to facilitate the decree, the defendants transferred the land into their joint names, defeating the decree; the registration is null and void
The Green Card showed the caution was removed on 27th May 2013 after the decree of 8th May 2013, yet the defendants transferred the land to themselves on 3rd July 2013 and obtained title on 15th July 2013. Their proper remedy was appeal, not circumvention of the decree. Further, the 1st defendant as trustee could not deal with the land as private property or register his children without the plaintiffs' consent.
Legal principles established
#- Res judicata does not bar a claim based on trust and fraud where the prior tribunal lacked jurisdiction over such issues
- Registration of land in a party's name does not relieve him of his obligations as a trustee
- The court never presumes a trust; the intention to create a trust must be clearly determined
- Allegations of fraud must be strictly proved to a standard above mere balance of probabilities
- Land may not be registered in or denied to persons on the basis of sex or marital status
Court orders
#- 1.The registration of land parcel No. BARAGWE/GUAMA/1460 in the names of the 2nd, 3rd and 4th defendants is illegal, null and void and it be cancelled
- 2.The 1st defendant holds land parcel No. BARAGWE/GUAMA/1460 in trust for the plaintiffs; that trust is determined and one (1) acre thereof be registered in the joint names of the plaintiffs, as much as possible including the portion the plaintiffs currently occupy
- 3.Each party to meet their own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land held in trust and challenges to registration of land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Faith Waruguru & 3 others v Mugane Njagi & 3 others [2017] KEELC 2019 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2019/eng@2017-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.