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ELCAllowedELC Suit (originally filed at Nyeri 19/7/2010, transferred to Murang'a ELC 14/12/2017)· [2019] KEELC 2747 (KLR)

Josphat Kamande Macharia v Livingstone Wanyoike King’ara [2019] KEELC 2747 (KLR)

Environment and Land Court
24 June 2019
4,339 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff sued his alleged elder brother seeking declarations that three parcels — LOC6/KANDANI/1706, LOC6/KANDANI/1707 and LOC17/SABASABA/1537 — are held by the Defendant in trust for both to the extent of half share, determination of the trust, and registration of the Plaintiff's share. The Defendant denied being a son of Macharia Gathu and asserted absolute, indefeasible titles, contending the lands were acquired by court decree in PMCC No. 302 of 1992 and by succession from Gachuma Gathu's estate, not as family land. The court traced the litigation history: clan elders in 1991 determined the parties' late father was entitled to land held by uncles Kingara and Gachuma Gathu; the 1992 suit resulted in 12 acres being decreed to the Defendant on account of customary trust; an LDT award to the Plaintiff was quashed in Judicial Review Misc No. 1061 of 2007. Applying the law on customary trust as an overriding interest under section 28(b) of the Land Registration Act and Article 60 of the Constitution, and citing Mbui Mukangu, Justus Maina Muruku, Isack M'Inanga Kieba and Peter Gitonga, the court found both parties are sons of Macharia Gathu, that the Defendant perjured himself in denying paternity, and that the root of the suit lands is the parties' father, making them ancestral family land encumbered by customary trust. The Plaintiff's suit succeeded in full: the court declared the trust, determined it in the Plaintiff's favour, ordered transfer of half shares (with the Deputy Registrar empowered to execute in default), removed restrictions on the titles, and awarded costs to the Plaintiff.

Key legal issues

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01

Whether the suit parcels are encumbered by customary trust

Holding

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.

Reasoning

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.

p. 5
02

Whether the Defendant's paternity and denial of the relationship defeats the claim

Holding

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.

Reasoning

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.

p. 4
03

Whether indefeasibility of title under the Registered Land Act shields the Defendant

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.Any restrictions subsisting on the titles are removed forthwith
  5. 5.Costs of the suit payable by the Defendant

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 60(1)(a); Article 10(2)
  • Land Registration Act, 2012sections 24, 25, 26, 28 (including 28(b))
  • Registered Land Act, Cap 300 (repealed)sections 27, 28, 30 (including 30(g))

Cases cited (4)

  • Mbui Mukangu v Gerald Mutwiri Mbui
    CA No 281 of 2000
  • Justus Maina Muruku v Jane Waithira Mwangi
    (2018) eKLR
  • Isack M'Inanga Kieba v Isaya Theuri M'Lintari & Anor
    (2018) eKLR; SCOK Petition 10 of 2015
  • Peter Gitonga v Francis Maingi M'Ikiara
    Meru HC.CC No. 146 of 2000
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

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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, "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.