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ELCPartially AllowedELC Case No. 384 of 2017· [2018] KEELC 1188 (KLR)

Janet Muthoni Muriithi & 2 others v Lydiah Wanjiru Kamau & another [2018] KEELC 1188 (KLR)

Environment and Land Court
29 October 2018
MOM.C. Oundo
7,338 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that even a registered land title can be subject to customary family trust obligations.

What this practically means

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Executive summary

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Three sisters sued their brother (and initially their mother, who died during trial, causing the suit to abate against her under Order 24 Rule 4(3) of the Civil Procedure Rules) claiming that the 32-acre parcel Nyandarua/Upper Gilgil/389, registered in their mother's name after the family land of Kamau Kamuya was divided between his two houses, was held in customary trust for all children of the second house. The mother subdivided the parcel in 2011, registering 28 acres (parcel 935) in the brother's name and retaining about 3 acres (parcel 936). The Plaintiffs sought declarations of trust, determination of the trust and equal sharing of both parcels. The Defendant contested jurisdiction, arguing the claim properly belonged in probate proceedings, and relied on the indefeasibility of title under Section 26 of the Land Registration Act. The court held it had jurisdiction, reasoning that the father's estate had been fully administered in Succession Cause No. 51 of 1971, so the claim concerned trust over later-registered parcels, not the estate. While finding the mother's title absolute and unimpeachable absent pleaded fraud, the court applied the Supreme Court's framework in Isack M'inanga Kiebia v Isaaya Theuri M'lintari and found a Kikuyu customary trust proved: the land was family land, the claimants were family members, and the claim lay against a registered proprietor within the family. Judgment was entered declaring that parcels 389, 935 and 936 were held in trust for all children of the second house; the caution on parcel 935 was ordered removed and 935 ordered subdivided equally among the children. Parcel 936 was left for a succession cause. Being family members, no orders as to costs were made.

Key legal issues

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01

Jurisdiction - whether the ELC could hear a claim traceable to a concluded succession cause

Holding

The court had jurisdiction because the claim did not concern administration of Kamau Kamuya's estate, which had been concluded in Succession Cause No. 51 of 1971; the suit concerned trust over land registered in the mother's name

Reasoning

The estate of the original owner was fully administered in 1971 when Herenah Wairimu Kamau became absolute proprietor of the original parcel without reservation or life interest. Once she dealt with the land, each house became independent. The dispute therefore concerns trust over subsequently registered parcels, not the devolution of the deceased father's estate, and is properly before the ELC.

p. 6
02

Indefeasibility of title under Section 26 Land Registration Act

Holding

The mother's title to parcel 389 was absolute and indefeasible since no fraud or misrepresentation was pleaded

Reasoning

Section 26(1) renders a certificate of title prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud/misrepresentation or corrupt/illegal acquisition. Neither ground was pleaded by the Plaintiffs. The root of title was sufficiently established and the deceased mother was absolute proprietor of parcel 389.

p. 7
03

Customary trust over family land despite absolute registration

Holding

A Kikuyu customary trust was established in favour of the children of the second house, binding the registered proprietor and her transferee son

Reasoning

Applying the Supreme Court's decision in Isack M'inanga Kiebia v Isaaya Theuri M'lintari, the court found the land was family land before registration, the claimants belong to the family, and the claim is directed against a registered proprietor who is a family member. Evidence of family occupation, farming and building on the land, and of the land having formed part of the father's allocation, proved the trust notwithstanding the absence of the word 'trust' on the register.

p. 8
04

Remedies - determination of the trust and subdivision

Holding

The trust over parcel 935 was determined and the parcel ordered shared equally among all children of the second house; parcel 936 was left to a succession cause

Reasoning

Having found both parcels 935 and 936 are held in trust for all children of the second house, the court ordered the caution on 935 removed and equal subdivision of 935. However, 936, registered in the deceased mother's name, requires a succession cause for distribution, so that part of the relief was deferred.

p. 8

Legal principles established

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  • A customary trust, if proved, is one of the trusts to which a registered proprietor is subject under the proviso to Section 28 of the (repealed) Registered Land Act, now mirrored in Section 25(b) of the Land Registration Act
  • Title under Section 26(1) of the Land Registration Act is prima facie and indefeasible and may be challenged only on grounds of fraud/misrepresentation or illegal, unprocedural or corrupt acquisition
  • The fact that a title does not denote 'trust' on the register does not relieve a registered owner of customary trust obligations

Court orders

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  1. 1.Declaration that Nyandarua/Upper Gilgil/389 was registered in the name of Lydiah Wanjiru Kamau (deceased) to hold in trust for her own behalf and on behalf of the second house of Kamau Kamuya
  2. 2.Declaration that the subdivision of Nyandarua/Upper Gilgil/389 and the registration of parcels 935 and 936 were held in trust for all the children from the second house of Kamau Kamuya
  3. 3.Removal of the caution registered on Nyandarua/Upper Gilgil/935
  4. 4.Nyandarua/Upper Gilgil/935 to be subdivided and shared equally amongst the Plaintiffs, the 2nd Defendant and other children from Kamau Kamuya's second house
  5. 5.Nyandarua/Upper Gilgil/936 to be dealt with in a succession cause
  6. 6.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 4(3)
  • Land Registration ActSection 26(1); Section 25(b)
  • Land Actnot specified
  • Registered Land Act (Cap 300) (repealed)Sections 27, 28 (proviso), 30 and 30(g); Section 126(1)

Cases cited (14)

  • Mwangi & Another vs Mwangi
    [1986] KLR 328
  • Wanjiru Mwangi Gichuhi & Another vs Tabitha Njoki Mwangi
    Nakuru HCC No. 105 of 2003
  • Kanyi vs Muthiora
    [1984] KLR 712
  • Joseph Githinji Gathiba vs Charles Kingori Gathiba
    [2001] eKLR
  • Limuli vs Marko Sabayi
    [1979] KLR 251
  • PLR vs JNR & Another
    [2013] eKLR
  • Isaiah Gichimu Waweru vs Elijah Nganga Waweru
    [2015] eKLR
  • Ayoup vs Standard Bank of SA
    [1963] EA 619
  • Mukangu vs Mbui
    KLR (E&L) 1,622
  • Salesio M'Itonga vs M'Ithara & 3 Others
    (2015) eKLR
  • Isack M'inanga Kiebia v Isaaya Theuri M'lintari & another
    [2018] eKLR
  • Kiarie v. Kinuthia
  • Obiero v. Opiyo
  • Esiroyo v. Esiroyo
Jurisdiction invoked
Article 162(2)(b) jurisdiction of the Environment and Land Court over disputes relating to land; jurisdiction contested by the Defendant but upheld

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, "Janet Muthoni Muriithi & 2 others v Lydiah Wanjiru Kamau & another [2018] KEELC 1188 (KLR)", Case Analysis (2018). ELC Case No. 384 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1188/eng@2018-10-29

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