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ELCAllowed· [2018] KEELC 2249 (KLR)

Joseph Wainaina Gathiru v Anthony Njoroge Gathiru [2018] KEELC 2249 (KLR)

Environment and Land Court
26 July 2018
JKJ.G. Kemei
3,163 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Murang'a court ruled that land registered in an eldest son's name can still belong to his brother under Kikuyu customary trust, even without registration.

What this practically means

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Executive summary

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Two brothers litigated over LR No. Loc.1/Kiunyu/1416, a portion of the original Loc.1/Kiunyu/465 which their late father Gathiru Hunja had allocated to the house of his second wife Njoki. The Plaintiff claimed the Defendant, the eldest son of that house, was registered as owner during demarcation in trust for the family, and sought a declaration of trust and an order compelling transfer. The Defendant denied the trust, asserting absolute ownership, and objected that the suit should have been brought by originating summons under Order 37 of the Civil Procedure Rules rather than by plaint. The court held the suit was not fatally defective: Order 37 rule 19 permits conversion where viva voce evidence is needed, no technical objection of form lies under Order 2 rule 14, and Article 159(2)(d) favours substantive justice. On the merits, the court applied the repealed Land Registration Act Cap 300 (sections 28 and 30) and the current Act's section 28(b) to find that customary trusts are overriding interests needing no noting on the register. Relying on Kanyi v Muthiora, Njenga Chogera, Muthuita and Njuguna v Njuguna, the court found that under Kikuyu customary law the eldest son holds land as Muramati in trust for his house. The evidence of lineage, lifelong occupation, developments on the land, the subdivision following elders' and the D.O.'s intervention, and the Plaintiff's custody of the original title, satisfied the court that a customary trust existed. The court declared the Defendant holds the suit land in trust for the Plaintiff and ordered transfer, with the Deputy Registrar empowered to execute documents in default; each party was to bear their own costs.

Key legal issues

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01

Whether a trust claim commenced by plaint rather than originating summons is fatally defective

Holding

The suit is not fatally defective; rules are handmaiden of justice and Order 2 rule 14 bars technical objections of form.

Reasoning

Order 37 requires trust claims by originating summons, but rule 19 permits conversion to a plaint where viva voce evidence is needed. The cause of action was unambiguous, allowing the Defendant to know the case against him. Article 159(2)(d) favouring substantive justice reinforced the court's refusal to strike out the suit on a technicality.

p. 2
02

Whether the Defendant holds the suit land in trust for the Plaintiff

Holding

Customary trust proved; the land was family land registered in the Defendant's name as eldest son of the house of Njoki.

Reasoning

Evidence showed the father allocated land per house under Kikuyu custom, registering each parcel in the name of the eldest son as trustee. The Plaintiff was born, raised and lives on the land with developments; the original title was in the Plaintiff's custody after subdivision; the Defendant's claim of purchase from Kagunya was unsupported. The totality pointed to a customary trust over Loc.1/Kiunyu/1416.

p. 4

Legal principles established

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  • Customary trust is an overriding interest that need not be noted on the register.
  • Customary law trust is proved by leading evidence on the history of the suit property and the relevant customary law.
  • Under Kikuyu customary law the eldest son inherits land as a Muramati to hold in trust for himself and the other heirs.

Court orders

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  1. 1.It is hereby declared that the Defendant holds LR NO LOC 1/KIUNYU/1416 in trust for the Plaintiff.
  2. 2.The Defendant be and is hereby ordered to transfer the said LR NO LOC 1/KIUNYU/1416 to the Plaintiff in default the Deputy Registrar of this Court be and is hereby authorized to execute all the necessary documents to effect the transfer.
  3. 3.The parties being brothers, each to bear their own costs.

Authorities

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Legislation

  • Civil Procedure Actsection 19
  • Civil Procedure RulesOrder 37, rule 19; Order 2 rule 14
  • Land Registration Actsections 24(a), 25(1), 26(1), 28(b)
  • Land Registration Act Cap 300 (now repealed)sections 28, 30(g)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (5)

  • Kanyi Vs Muthiora
    1984 KLR 712 CA
  • Njenga Chogera –vs- Maria Wanjira Kimani & 2 Others
    [2005] eKLR
  • Muthuita –vs- Muthuita
    [1982 – 88] 1 KLR 42
  • Peter Gitonga Vs Francis Maingi M'Ikiara
    Meru HC.CC NO. 146 OF 2000
  • Njuguna Vs Njuguna
    (2008) 1 KLR 889
Jurisdiction invoked
First-instance land claim by plaint; Article 159(2)(d) of the Constitution invoked on procedure

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Joseph Wainaina Gathiru v Anthony Njoroge Gathiru [2018] KEELC 2249 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2249/eng@2018-07-26

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