Josphat Kamande Macharia v Livingstone Wanyoike King’ara [2019] KEELC 2747 (KLR)
The bottom line
#A Murang'a court ruled that ancestral family land carries a customary trust that survives registration, ordering a registered owner to transfer half to his brother.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit parcels are encumbered by customary trust
Yes. The root of the suit lands is traceable to the parties' father Macharia Gathu; the Defendant acquired the parcels through court-ordered transfer of trust land and succession of family land, so both parcels are held in trust for himself and the Plaintiff to the extent of half share.
The court traced the title history via green cards, elders' minutes of 25/6/1991 and the PMCC No. 302 of 1992 decree, which found Kingara Gathu held 12 acres in trust for the parties' father. The Defendant received 12 acres from that trust and 2 acres from the estate of Gachuma Gathu, both encumbered by customary trust. Neither party showed purchase or other acquisition displacing the trust; the court found both lied about the lands being gifts.
Whether the Defendant's paternity and denial of the relationship defeats the claim
No. The court found the Plaintiff and Defendant are both sons of Macharia Gathu, noting the Defendant's sworn evidence in PMCC No. 302 of 1992 contradicted his defence.
The Defendant's evidence in the earlier suit expressly acknowledged being a son of Macharia Gathu. His denial in this suit was a complete reversal amounting to perjury. The elders' minutes and the earlier judgment corroborated the paternal relationship, so the defence of non-paternity failed.
Whether indefeasibility of title under the Registered Land Act shields the Defendant
No. Customary trust is an overriding interest that need not be noted on the register and can only be extinguished by distribution of the trust asset to beneficiaries.
The court contrasted sections 27, 28 and 30 of the (repealed) Registered Land Act with sections 24, 25, 26 and 28 of the Land Registration Act, 2012, holding that overriding interests, including customary trusts, survive registration. Since the Defendant received a trust asset and has not distributed it to the beneficiaries, he remains obligated to account for it.
Legal principles established
#- Customary trust is an overriding interest under section 28(b) of the Land Registration Act that need not be noted on the register and moves with the land.
- Where land devolved from a family member, the presumption of customary trust, subject to evidence, is high.
- A registered proprietor's absolute title is subject to overriding interests including trusts including customary trusts.
Court orders
#- 1.A declaration that the Defendant is registered in parcel LOC6/KANDANI/1706, LOC6/KANDANI/1707 and LOC17/SABASABA/1537 in trust for himself and the Plaintiff to the extent of half share
- 2.The trusts are determined in favour of the Plaintiff and the Plaintiff is to be registered as owner of his share of the parcels
- 3.The Defendant to transfer half share of the suit lands to the Plaintiff; in default the Deputy Registrar is mandated to execute all documents to give effect to the orders
- 4.Any restrictions subsisting on the titles are removed forthwith
- 5.Costs of the suit payable by the Defendant
- Jurisdiction invoked
- Environment and Land Court jurisdiction (original suit; Article 162(2)(b) context; the judgment does not expressly cite the jurisdictional provision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josphat Kamande Macharia v Livingstone Wanyoike King’ara [2019] KEELC 2747 (KLR)", Case Analysis (2019). ELC Suit (originally filed at Nyeri 19/7/2010, transferred to Murang'a ELC 14/12/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2747/eng@2019-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.