Daniel K. Cheraisi & 2 others v Kipkoech Kangogo & another [2018] KEELC 3308 (KLR)

The court found each wife was allocated a distinct parcel; the 2nd plaintiff remained on Kakamor/Rosoga/34 measuring 38 acres. The suit land was allocated to the 3rd wife, lived on, buried on, and occupied by the 2nd defendant. Without possession or occupation by the 2nd plaintiff, no overriding interest under section 28 of the Land Registration Act or matrimonial property interest in the suit land can arise.

The court reviewed the case law on whether customary rights survive first registration under the RLA (Obiero v Opiyo, Esiroyo v Esiroyo, Alan Kiama, Kanyi v Muthiora, Gathiba v Gathiba). Trusts recognized under the proviso to section 28 RLA survive registration, but a customary trust requires possession or occupation. The plaintiffs had no home on the land, never improved it, and had been provided for elsewhere, so no trust in their favour was established.

Relying on sections 24, 25 and 26(1) of the Land Registration Act, the court held the registered proprietor's title is absolute and indefeasible save for overriding interests declared in section 28. The claim was framed not as a title challenge but as a declaration of overriding interests and customary trust, which on the evidence failed.

Since the plaintiffs failed to establish any overriding interest or trust, the 1st defendant retains full power over the suit land. Spousal consent was unnecessary because the 3rd wife, to whose house the land was allocated, had beneficial rights during her lifetime and the 2nd defendant need not obtain the 2nd plaintiff's consent.