Hannah Wanjiru Kamau (Suing as the legal representative of the estate of Kamau Kirui Karongo) v Jane Njeri Karongo & Harrison Munga Karongo (Sued as the legal representatives of the estate of Rongo Kiuri & another [2019] KEELC 1100 (KLR)
The bottom line
#A Kenyan court ordered two brothers' estates to transfer portions of family land they held in trust, showing that land registration does not defeat customary trusts.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit was res judicata by virtue of Kiambu RMCC No. 137 of 1990
The suit was not res judicata because the previous originating summons was dismissed preliminarily without a determination on the merits, and the magistrate's court lacked jurisdiction over trust in land.
The trial magistrate had directed the plaintiff to file a plaint but dismissed the originating summons at the preliminary stage, no orders as to costs, without hearing the parties. There was therefore no final determination of the issues. Further, the earlier court lacked jurisdiction over trust claims. The defence raised the plea but it was effectively abandoned by the parties.
Whether the defendants held parcels 573 and 584 in trust for the plaintiff
Yes. The defendants were registered as proprietors during the plaintiff's detention in the 1955-1960 consolidation and adjudication process, over family land, and hold the parcels in trust for themselves and the plaintiff.
All witnesses agreed the parcels formed part of the parties' mother's family land which under Kikuyu customary law should pass to all male children. The claim that the plaintiff had been allocated other land which he sold was unsupported by particulars. The defence of occupation as a muhoi (ahoi) was contradicted by the pleadings which admitted the plaintiff's use of a portion of parcel 584. The court drew on established precedent on customary trusts arising from emergency-period registrations.
Whether registration under the Land Registration Act, 2012 shields the defendants from the trust claim
No. Section 28(b) of the Land Registration Act, 2012 expressly recognises customary trusts as overriding interests, and the proviso to section 28 of the repealed Registered Land Act (Cap 300) preserved trustees' obligations.
The court rejected the indefeasibility argument, holding that abundant judicial precedent, the proviso to section 28 of the repealed Registered Land Act, section 28(b) of the current Act, and the Supreme Court's decision in Isack M'inanga Kiebia all recognise that first registration does not relieve a proprietor of trust obligations. Subdivision and sale of parcel 584 during the pendency of the suit could not defeat the beneficiary's overriding interest.
Whether the plaintiff was entitled to the remedies sought
The plaintiff proved her claim on a balance of probabilities and judgment was entered: excision and transfer of 1 ½ acres from parcel 573 and 0.75 of an acre from parcel 584 (or any of its subdivisions) to the plaintiff.
Parcel 573 remained intact at approximately 7 acres, supporting the claim for 1 ½ acres. Parcel 584 had been subdivided into parcels 4509-4515 during the pendency of the suit and partly sold, so the court directed excision of 0.75 of an acre from any of the subdivisions, applying the doctrine of lis pendens in effect. Each party was to bear their own costs as a family dispute.
Legal principles established
#- A customary trust, once proved to subsist, is one of the trusts to which a registered proprietor is subject notwithstanding first registration.
- Registration of title does not extinguish a proprietor's obligations as a trustee; subdivision or sale of trust land does not relieve the trustee and is subject to the beneficiary's overriding interest.
- Res judicata requires a final determination on the merits by a court of competent jurisdiction.
Court orders
#- 1.That the 1st Defendant and/or his legal representative hold land parcel number Kiambaa/Kihara/573 in trust and/or as trustee for himself and the Plaintiff and is hereby ordered to excise a portion of 1 ½ acres therefrom and to transfer the same to Hannah Wanjiru Kamau as the personal legal representative of the estate of Kamau Kiuri Karongo in discharge of the trust.
- 2.That the 2nd Defendant and/or his legal representatives held land parcel Kiambaa/Kihara/584 (now subdivided into parcels 4509 - 4515) in trust and/or as trustee for himself/themselves for the Plaintiff and are hereby ordered to cause the excision of a portion measuring 0.75 of an acre therefrom and to transfer the same to Hannah Wanjiru Kamau as the legal representative of the estate of Kamau Kiuri Karongo in discharge of the trust; the excision can be effected from any of the subdivisions held by the administrators and/or the beneficiaries to whom they may have effected transfer.
- 3.Each party to bear their own costs of the suit, this being a family dispute.
- Jurisdiction invoked
- Environment and Land Court jurisdiction over disputes relating to land held in trust (original first-instance suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hannah Wanjiru Kamau (Suing as the legal representative of the estate of Kamau Kirui Karongo) v Jane Njeri Karongo & Harrison Munga Karongo (Sued as the legal representatives of the estate of Rongo Kiuri & another [2019] KEELC 1100 (KLR)", Case Analysis (2019). Environment and Land Case (as derived from plaint dated 27th April 1994; original suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1100/eng@2019-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.