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ELCPartially AllowedELC 507 of 2016 (consolidated with ELC 507 of 2016, Murang'a)· [2018] KEELC 1699 (KLR)

Douglas Macharia Waithaka v Samuel Mugo Njoki [2018] KEELC 1699 (KLR)

Environment and Land Court
27 September 2018
JKJ. G. Kemei
2,492 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed ancestral land carries customary trust even without the word 'trust' on the title, but a living owner cannot be forced to share it.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of Loc.19/Gacharageini/1189, sued for removal of a caution lodged by the Defendant, his son, on 4/7/01. The Defendant denied the claim and by counterclaim asserted a customary trust over the land, which the Plaintiff inherited from his father, seeking protection against its subdivision, sale or bequest to the children of the Plaintiff's second wife to his exclusion. The matter was consolidated with ELC 507 of 2016, Murang'a by consent. The Court framed three issues: whether the land is subject to trust, whether the caution should be removed, and costs. Applying Gathiba v Gathiba, the Court held that registration does not extinguish customary trust and that the absence of the word 'trust' on the title does not relieve the proprietor of his trustee obligations under Kikuyu custom. Following Salesio M'Itonga and George Mbiti Kiebia, trust is a question of fact provable by evidence and occupation is not necessary; the Defendant proved the trust on the admitted evidence that the land was ancestral. However, relying on Marigi vs. Muriuki, the Court declined to order subdivision or distribution, holding that a living owner cannot be compelled to distribute his property and his rights extinguish only on death. The counterclaim partly succeeded: the land was declared held under customary trust for the Plaintiff's family including the Defendant, but the caution was ordered removed as unjustified once the trust was established. The Plaintiff's claim for loan-backed medical expenses was unsupported by evidence. No orders as to costs were made as the parties are related.

Key legal issues

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01

Whether the suit land is subject to customary trust

Holding

The land is ancestral land inherited by the Plaintiff from his father and is held under customary trust for his family, the Defendant included.

Reasoning

The Defendant led evidence, admitted by the Plaintiff, that the land was inherited from the Plaintiff's father, making it ancestral and trust land. Following Gathiba v Gathiba, registration does not extinguish customary trusts, which are recognized under the proviso to section 28 of the Registered Land Act; the absence of the word 'trust' on the title does not relieve the proprietor of his trustee obligations under Kikuyu custom.

02

Whether the caution lodged by the Defendant should be removed

Holding

Yes, the caution is ordered removed despite the finding of trust.

Reasoning

Having declared the customary trust, the Court found no justification for the caution to remain on the title. The Defendant cannot compel distribution during the Plaintiff's lifetime; his rights arise on devolution, and a licensee's interest as lodged cannot block the registered owner indefinitely.

p. 3
03

Whether a living owner may be ordered to subdivide ancestral/trust land

Holding

No; distribution is at the owner's free will and his rights are extinguished only on death.

Reasoning

Relying on Marigi vs. Muriuki & 2 Others, the Court held that the Court of Appeal there found no law compelling a living owner to distribute his property among wives and children; subdivision must flow from his own volition. Accordingly, the Defendant must await succession proceedings after the Plaintiff's demise.

p. 3

Legal principles established

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  • Customary trust is recognized under the land registration statutes notwithstanding that the word 'trust' is not denoted on the title.
  • Possession or occupation of the suit land is not necessary to prove customary trust.
  • A living registered proprietor cannot be compelled to subdivide or distribute ancestral land held under customary trust; the trust does not remove the caution or justify distribution during his lifetime.

Court orders

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  1. 1.The land is declared to be held under customary trust by the Plaintiff for his family, the Defendant included.
  2. 2.The caution registered on the title be and is hereby removed.
  3. 3.No orders as to costs.

Authorities

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Legislation

  • Land Registration ActSections 24, 25, 26, 28, 71
  • Registered Land Act (repealed)Sections 27, 28, 30(g), proviso to section 28, section 126(1)
  • Civil Procedure ActSections 1A & 1B
  • Constitution of Kenya 2010Articles 2, 43, 45, 159(2)(e), 260

Cases cited (6)

  • Stephen Maina Kinyua vs. Rosemary Njoki Maina
    (2008) EKLR
  • Gathiba v Gathiba
    Nairobi HCCC 1647/84 [2001] 2 EA 342
  • Salesio M'Itonga Vs M'Ithara & 3 Others
    (2015) EKLR
  • Mbui Mukangu v Gerald Mutwiri Mbui
    [2004] eKLR
  • George Mbiti Kiebia & another v Isaya Theuri M'lintari & another
    [2014] eKLR
  • Marigi vs. Muriuki & 2 Others
    (2008) IKLR 1073
Jurisdiction invoked
Original jurisdiction 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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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Douglas Macharia Waithaka v Samuel Mugo Njoki [2018] KEELC 1699 (KLR)", Case Analysis (2018). ELC 507 of 2016 (consolidated with ELC 507 of 2016, Murang'a). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1699/eng@2018-09-27

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