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ELCPartially AllowedMeru ELC Case (Plaint dated 13th May 2008)· [2019] KEELC 1676 (KLR)

Nancy Mwari Marete & another v Daniel Riungu Marete & another [2019] KEELC 1676 (KLR)

Environment and Land Court
25 September 2019
3,878 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court returned ancestral family land sold to a buyer, ruling a registered title cannot defeat customary trust rights of family members living on the land.

What this practically means

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Executive summary

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The plaintiffs, a sister and a son of the 1st defendant, claimed that the 1st defendant held land parcel No. 2654/Abothuguchi/Kithirune (0.41 Ha) in implied trust for them and that his sale of the parcel to the 2nd defendant was null and void. They sought transfer of the land to themselves. The defendants denied the claim, the 1st defendant asserting he sold his registered land for value and the 2nd defendant claiming to be a bona fide purchaser. The court framed two issues: whether the 1st defendant held the land in trust for the plaintiffs, and whether the 2nd defendant was an innocent purchaser. On the first, the court held trust was properly pleaded, found the parcel was ancestral family land carved out of parcel No. 187 inherited through a succession cause, and that the plaintiffs' occupation and the fiduciary family relationship created a customary trust, an overriding interest under section 28 of the Land Registration Act which registration could not defeat. The confirmed grant had given the 1st defendant the whole parcel 187, and its unsanctioned subdivision could not defeat the occupying plaintiffs. On the second issue, the court found the sale agreement and land control consent predated the registration of the land in the 1st defendant's name, showing haste and want of good faith; the sale agreement acknowledged houses and piped water on the land, so the 2nd defendant knew of the plaintiffs' occupation and failed the bona fide purchaser test. The court declared the plaintiffs entitled to the parcel by customary trust, ordered its transfer from the 2nd defendant, dispensed with land control consent, discharged subsisting cautions and inhibitions, allowed the 2nd defendant to pursue the 1st defendant separately, and awarded costs against the 1st defendant.

Key legal issues

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01

Whether the issue of trust was properly pleaded

Holding

The trust was properly pleaded; the plaint expressly pleaded an implied trust and the 1st defendant's defence specifically denied it

Reasoning

The defence argued under Order 2 rule 4 of the Civil Procedure Rules that trust was not specifically pleaded. The court found paragraph 5 of the plaint expressly pleaded that the 1st defendant held the parcel in an implied trust, and the 1st defendant's paragraph 3 defence specifically denied this, confirming the issue was properly before the court.

p. 3
02

Whether the suit land was ancestral land held in customary trust for the plaintiffs

Holding

Yes; the land was ancestral family land and the 1st defendant held it in customary trust for the plaintiffs, who were entitled to it notwithstanding registration

Reasoning

Evidence from DW1 and the plaintiffs confirmed the parcel formed part of the ancestral parcel No. 187 belonging to the parties' father/grandfather. The plaintiffs occupied the land and were not challenged on occupation. The confirmed grant gave the 1st defendant the whole parcel 187, and its unsanctioned subdivision could not defeat the occupying sister and son. Occupation and the fiduciary family relationship created a customary trust, an overriding interest under the Land Registration Act.

p. 4
03

Whether the 2nd defendant is a bona fide purchaser for value without notice

Holding

No; the 2nd defendant failed to establish good faith

Reasoning

The timelines showed the sale agreement (2.8.2006) and land control consent (14.2.2006) predated registration of the land in the 1st defendant's name (26.9.2006), evidencing haste and lack of good faith. The sale agreement itself acknowledged improvements (a house and piped water) on the land, contradicting the claim the land was sold vacant, and the 2nd defendant knew the plaintiffs were in occupation.

p. 5

Legal principles established

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  • Customary trusts constitute overriding interests under section 28 of the Land Registration Act notwithstanding registration of the title
  • A trust is a question of fact which must be proved and cannot be imputed
  • A bona fide purchaser for value must acquire valid legal title, carry out due diligence and pay valuable consideration
  • One need not be in actual physical possession or occupation of land to prove the existence of a trust

Court orders

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  1. 1.Declared that the plaintiffs are entitled to parcel of land No. 2654/Abothuguchi/Kithirune measuring 0.41 ha by way of customary trust
  2. 2.Ordered transfer of land Parcel No. 2654/Abothuguchi/Kithirune from the 2nd defendant to the plaintiffs
  3. 3.Authorised the Deputy Registrar to sign the requisite documents to give effect to the judgment
  4. 4.Dispensed with the consent of the land control board for the transfer
  5. 5.Directed the 2nd defendant to surrender the original title to the Land Registrar within 30 days, failing which production of the title is dispensed with
  6. 6.Discharged any orders of inhibition, injunction and caution subsisting over the land
  7. 7.Granted the 2nd defendant liberty to pursue his claim against the 1st defendant in a separate suit
  8. 8.Costs of the suit to be borne by the 1st defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 rule 4
  • Registered Land Act (repealed)section 28
  • Registered Land Act (repealed)section 30(g)
  • Registered Land Act (repealed)section 126(1)
  • Land Registration Actsection 28(b)

Cases cited (11)

  • Kenya Tea Development Agency Limited vs Victory Tea Brokers Limited
    Nairobi Civil Appeal No. 171 of 2011
  • National Social Security Fund Board of Trustees vs Dr. Sally Kosgei & Another
    Nairobi Civil Case No. 714 of 2003
  • Mbuthu and 8 Others versus Waitimu & 11 Others
    (1986) KLR 171
  • Peter Nyaga Kairu vs Esther Wanjiku Njau & Others
    Thika ELC No. 275 of 2017 (formerly Nairobi H.C.C.C. No. 162 of 2005)
  • Justus Maina Muruku v Jane Waithira Mwangi
    [2018] eKLR
  • Gathiba vs Gathiba
    Nairobi HCCC No. 1647/84
  • Isack M'Inanga Kiebia v Isaya Theuri M'Lintari & another
    [2015] eKLR
  • Mbui Mukangu vs Gerald Mutwiri
    (2004) eKLR
  • Lawrence P. Mukiri Mungai, Attorney of Francis Muroki Mwaura v Attorney General & 4 others
    [2017] eKLR
  • Katende V Haridar & Company Limited
    [2008] 2 E.A. 173
  • Samuel Kamere Vs Land Registrar
    [2015] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to title to land

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, "Nancy Mwari Marete & another v Daniel Riungu Marete & another [2019] KEELC 1676 (KLR)", Case Analysis (2019). Meru ELC Case (Plaint dated 13th May 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1676/eng@2019-09-25

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