Nancy Mwari Marete & another v Daniel Riungu Marete & another [2019] KEELC 1676 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the issue of trust was properly pleaded
The trust was properly pleaded; the plaint expressly pleaded an implied trust and the 1st defendant's defence specifically denied it
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.
Whether the suit land was ancestral land held in customary trust for the plaintiffs
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
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.
Whether the 2nd defendant is a bona fide purchaser for value without notice
No; the 2nd defendant failed to establish good faith
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.
Legal principles established
#- 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
#- 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.Ordered transfer of land Parcel No. 2654/Abothuguchi/Kithirune from the 2nd defendant to the plaintiffs
- 3.Authorised the Deputy Registrar to sign the requisite documents to give effect to the judgment
- 4.Dispensed with the consent of the land control board for the transfer
- 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.Discharged any orders of inhibition, injunction and caution subsisting over the land
- 7.Granted the 2nd defendant liberty to pursue his claim against the 1st defendant in a separate suit
- 8.Costs of the suit to be borne by the 1st defendant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to title to land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.