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ELCPartially Allowed· [2019] KEELC 792 (KLR)

James Nyakundi Omwenga v Richard Makori Nyakundi [2019] KEELC 792 (KLR)

Environment and Land Court
7 November 2019
4,743 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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The Kisii Land Court ruled that ancestral family land holds an invisible trust: even a registered title holder cannot evict family members occupying land with the owner's permission.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of land parcel West Kitutu/Bokingoina/1559 following succession to his father's estate, sued for the defendant's eviction and a permanent injunction, alleging unlawful occupation. The defendant counterclaimed, asserting that the plaintiff's grandfather Obonyo Omwenga held the ancestral land in trust for himself and the defendant's father, his brother, who was away working in the tea estates during the 1970s land adjudication and was never allocated land. The court framed three issues: lawfulness of occupation, existence of a customary trust, and appropriate reliefs. On the evidence, including abstracts of title and testimony of a retired chief who oversaw a partial subdivision of the land for the defendant's mother, the court found the suit land was ancestral family land and that the defendant's occupation was with the permission and sanction of the registered owner, hence not trespass. Applying the Supreme Court's decision in Isack M'Inanga Kiebia v Isaaya Theuri M'Lintari, the court held that a proved customary trust survives first registration under the proviso to section 28 of the Registered Land Act and that the Obiero v Opiyo and Esiroyo v Esiroyo line of authority was bad law. The court dismissed the plaintiff's suit, allowed the counterclaim, declared that Francis Omwenga Obonyo held part of the suit land in trust for the defendant, and ordered succession proceedings and excision and transfer of the defendant's occupied portion to him absolutely. Each party was ordered to bear their own costs, the court deeming it onerous to burden either party in an essentially family dispute.

Key legal issues

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01

Whether the defendant's occupation of the suit land was unlawful trespass

Holding

The occupation was lawful, being with the permission and sanction of the registered owner, and did not constitute trespass

Reasoning

The court found uncontroverted evidence that after the defendant's father died, his mother and family were voluntarily relocated to the suit land by the registered owner Obonyo Omwenga, who built a house for her. The defendant built a house and resided there since the 1990s, and his mother and family members were buried there. Occupation was therefore with the owner's permission and sanction.

p. 3
02

Whether a customary trust exists in favour of the defendant

Holding

A customary trust was established: the suit land was ancestral family land and Obonyo Omwenga held it in trust for himself and the defendant's father, the trust continuing for the dependants of the deceased

Reasoning

Applying the Supreme Court's elements in Isack M'Inanga Kiebia v Isaaya Theuri M'Lintari, the court found the land was ancestral family land, the defendant belongs to the family, his relationship was not remote, the defendant's father would have been entitled to registration but for working away during adjudication, and the claim is directed against a registered proprietor who is a family member. The plaintiff's reliance on Esiroyo v Esiroyo was unsustainable as that decision was declared bad law.

p. 5
03

Effect of registration and succession proceedings on overriding customary interests

Holding

The succession proceedings and resulting absolute registration were subject to the overriding customary interests that the original registered proprietor held the title upon, which required no noting on the register

Reasoning

The court held that the title registered in the plaintiff's father's name through succession in 2002 remained subject to the overriding interests under which the deceased had held the title. The title is therefore held in trust for his estate and the defendant, and the Land Registration Act 2012 expressly recognises customary trusts as overriding interests not requiring noting on the register.

p. 5

Legal principles established

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  • A customary trust, once proved, is one of the trusts to which a registered proprietor is subject under the proviso to section 28 of the Registered Land Act
  • Rights of a person in possession or actual occupation under section 30(g) of the Registered Land Act are customary rights and overriding interests, reversing Obiero v Opiyo and Esiroyo v Esiroyo
  • Customary trust is expressly recognised as an overriding interest under section 28(b) of the Land Registration Act, 2012

Court orders

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  1. 1.Dismissal of the plaintiff's suit
  2. 2.A declaration that Francis Omwenga Obonyo (deceased) held part of land parcel West Kitutu/Bokingoina/1559 in trust for the defendant
  3. 3.That appropriate succession proceedings in regard to the estate of Francis Omwenga Obonyo (deceased) be undertaken
  4. 4.That the portion of the suit land presently physically demarcated and occupied by the defendant be excised and transferred to the defendant Richard Makori Nyakundi absolutely in discharge of the trust
  5. 5.Each party to bear their own costs of the suit and the counterclaim

Authorities

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Legislation

  • Registered Land Act, Cap 300 Laws of Kenya (repealed)sections 27(a), 27, 28, 28(a)-(b), 30(g)
  • Land Registration Act, 2012section 28(b)

Cases cited (8)

  • Elizabeth W Wanjohi & others -Vs- Official Receiver & Interim Liquidator
    CACA NAI 40 of 1988
  • Esiroyo –Vs- Esiroyo
    (1973) EA 388
  • Kiaria –Vs- Mathune & others
    CA 42 of 1978 (unreported)
  • Isack M'Inanga Kiebia –vs- Isaaya Theuri M'Lintari & Another
    Petition No. 10 of 2015 (2018) eKLR
  • Obiero -Vs- Opiyo
    (1972) EA 227
  • Alan Kiama –Vs- Ndia Mathunya & others
    CA 42 of 1978
  • Kanyi –Vs- Muthiora
    (1984) KLR 712
  • Kiarie v. Kinuthia
Jurisdiction invoked
Original civil jurisdiction over land disputes (plaint dated 31st January 2017 and defence and counterclaim dated 13th March 2017)

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, "James Nyakundi Omwenga v Richard Makori Nyakundi [2019] KEELC 792 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/792/eng@2019-11-07

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