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ELCAllowed· [2018] KEELC 3791 (KLR)

Frashia Njeri Muthaka v Peris Wanjiru Karagu & 3 others [2018] KEELC 3791 (KLR)

Environment and Land Court
12 April 2018
JKJ. G. Kemei
4,697 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiff, sister of the 1st Defendant, sued for a declaration that the 1st Defendant held the ancestral parcel Loc 3/Gaturu/72 in trust for both of them, cancellation of the resultant titles created upon subdivision and registration in the names of the 1st Defendant's children (the 2nd, 3rd and 4th Defendants), and equal division of the land. The land, consolidated from fragments of the parties' deceased father, was first registered in the name of their mother, Gladys Wangui Karagu, who transferred it to the 1st Defendant in 1975 as a gift; the mother died in 1976. The Plaintiff testified that the land was to be held in trust for both sisters, that it had been physically subdivided with each sister in occupation of half, and that after she withdrew a caution in 2010 on a promise of reconciliation, the Defendants subdivided the land in 2012 and registered it in the children's names while judicial review proceedings over a Land Disputes Tribunal award were pending at Nyeri. The court held that customary trust is an overriding interest under section 30(g) of the repealed Registered Land Act and section 28(b) of the Land Registration Act, not requiring notation on the register, and found the Plaintiff proved a trust and possession of an equitable half share. Disentitling a woman on account of marital status was held discriminatory under Article 27. The transfer to the children was found to be an improper dealing with trust property that conveyed no better title, section 80 of the Land Registration Act offering no protection as they acted in concert. The court declared the trust, cancelled the resultant titles, ordered reversion and equal division along existing delineations, and awarded costs against all Defendants jointly and severally.

Key legal issues

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01

Whether the suit land was subject to a customary/constructive trust

Holding

Yes - the court found a constructive trust arose in favour of the father's family when the land was first registered in the mother's name, and the registration of the 1st Defendant did not extinguish the Plaintiff's customary-law rights

Reasoning

Relying on section 30(g) of the repealed Registered Land Act and section 28(b) of the Land Registration Act, the court held customary trust is an overriding interest not requiring notation on the register. Following Court of Appeal authority, the court found the mother held as trustee for herself and her two daughters, and the Plaintiff's possession and occupation of half the land created binding equitable rights that survived the subsequent subdivision and transfers.

p. 3
02

Whether disentitling the Plaintiff on account of her marital status is permissible

Holding

No - it would be discriminatory under Article 27 of the Constitution to disentitle a woman of beneficial interest in land on account of marital status

Reasoning

The 1st Defendant suggested the land was given to her because she remained unmarried while the Plaintiff was married. The court held that even if that was past practice, under the new constitutional dispensation such discrimination on the ground of marital status offends Article 27, which guarantees equality and non-discrimination, including between women and men in economic and social spheres.

p. 4
03

Whether the resultant titles of the 2nd, 3rd and 4th Defendants should be cancelled

Holding

Yes - the subdivision and transfer of trust property to the children during pending litigation was improper, and section 80 of the Land Registration Act offers them no protection

Reasoning

The court found the 1st Defendant subdivided and transferred the land to her children while the judicial review was pending, in an apparent attempt to defeat the Plaintiff's claim. Trust property cannot pass free of the trust; the children took subject to the customary trust. The court found they acted in concert with the 1st Defendant, so rectification under section 80 was warranted despite indefeasibility.

p. 5

Legal principles established

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  • Customary trust is an overriding interest in registered land that need not be noted on the register
  • A transferee of trust property takes subject to the trust and acquires no better title than the trustee
  • A person asserting an interest in land by lodging a caution and filing suit shows conduct consistent with a beneficial entitlement
  • Indefeasibility of title does not shield a registered owner against an overriding interest of customary trust

Court orders

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  1. 1.Declared that the 1st Defendant was registered as owner of Loc 3/Gituru/72 in trust for herself and the Plaintiff
  2. 2.Declared the resultant titles Loc 3/Gituru/1131, 1132 and 1133 in the names of the 2nd, 3rd and 4th Defendants null and void and ordered their cancellation
  3. 3.Ordered the Land Registrar, Murang'a to cancel the resultant titles and revert the land back to Loc 3/Gituru/72 in the name of the 1st Defendant
  4. 4.Dissolved the trust and ordered the land be divided into two equal portions between the Plaintiff and the 1st Defendant along the existing delineations and actual possession on the ground
  5. 5.Mandated the Deputy Registrar of the Court to sign all documents required to actualize demarcation, delineation, boundary and/or transfer
  6. 6.Costs of the suit payable by the 1st, 2nd, 3rd and 4th Defendants jointly and severally to the Plaintiff

Authorities

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Legislation

  • Registered Land Act (Cap 300, repealed)Section 30(g)
  • Registered Land Act (Cap 300, repealed)Section 163
  • Registered Land Act (Cap 300, repealed)Section 126(1)
  • Land Registration ActSection 28(b)
  • Land Registration ActSection 80
  • Constitution of KenyaArticle 27

Cases cited (4)

  • George Mbiti Kiebia & another v Isaya Theuri M'lintari & another
    [2014] eKLR
  • Mutsonga v Nyati
    (1984) KLR 425
  • Kanyi v Muthiora
    (1984) KLR 712
  • Mwangi & Another v Mwangi
    (1986) KLR 328
Jurisdiction invoked
Original jurisdiction over a claim for declaration of customary trust, cancellation of titles and subdivision of land (Environment and Land Court)

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, "Frashia Njeri Muthaka v Peris Wanjiru Karagu & 3 others [2018] KEELC 3791 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3791/eng@2018-04-12

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