Mary Wanjiru Njonjo v Njubi Karungari & another [2019] KEELC 3557 (KLR)
The bottom line
#A Kenyan court cancelled subdivided land titles and ruled that a brother held half the family land in trust for his sister-in-law, despite rejecting her adverse possession claim.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff acquired the suit land by adverse possession
The adverse possession claim failed because the plaintiff and her deceased husband occupied the land with the owner's consent as family members and never dispossessed the registered owner
The court applied the definition in Gabriel Mbui v Mukindia Maranya requiring non-permissive physical control hostile to the true owner. The plaintiff joined the family in 1978 and her husband had occupied since the 1950s, but their occupation was permissive and as members of Susan Karungari's family. Their agitation for a share manifested only in the filing of this suit in 1990, so the requisite hostility was never established.
Whether the 1st defendant holds half the Suit Premises in customary trust for the plaintiff
Yes - the court found a customary trust, applying the five elements from the Supreme Court decision in Isaak M'inananga Kieba v Isaaya Theuri M'Lintari
The land was family/clan land before registration; the claimant belongs to the family; the relationship is not remote; she could have been entitled to registration but for the registration of the eldest son under Kikuyu custom; and the claim is directed against a registered proprietor who is a family member. The 1st defendant's own admission in cross-examination that he held the land in trust for his mother, brother and Wanuri, and the earlier judgment in Wanuri's suit confirming a trust, corroborated the claim.
Whether the titles issued to the 2nd defendant after the subdivision should be revoked
Yes - the 2nd defendant failed all three tests of a bona fide purchaser for value, and the subdivision was a convoluted alienation pendente lite designed to defeat the plaintiff's claim
The 2nd defendant could not even identify the parcels he bought on the ground or on paper, showed no due diligence despite the plaintiff's long occupation visible on the land, and did not prove payment of consideration. The unequal, confusing subdivision during the pendency of the suit was irregular and intended to put the land out of the plaintiff's reach. The customary trust was an encumbrance that ran with the land notwithstanding registration.
Legal principles established
#- Customary trust is an overriding interest under section 28(b) of the Land Registration Act and need not be noted on the register; registration of a proprietor does not extinguish it
- A claimant must satisfy the five elements of customary trust set out by the Supreme Court to establish a trust over registered land
- A bona fide purchaser must prove valid legal title, due diligence as to the lawful owner, and payment of valuable consideration
- Adverse possession requires non-permissive physical control hostile to and excluding the true owner; permissive family occupation does not ripen into adverse possession
Court orders
#- 1.Declared that 1st defendant held land parcel no 746 in trust for himself and for the plaintiff
- 2.Declared that the alienation of the land parcel no 746 into 2778 and 2777 and the further subdivisions thereof are null and void
- 3.Declared that the sale and transfer of Title Numbers KABETE/LOWER KABETE/2778 and 2850 to the 2nd defendant is null and void
- 4.Ordered cancellation of all subdivisions and titles arising out of Title Number KABETE/LOWER KABETE/746 and re-subdivision into two equal halves, one registered in the plaintiff's name and the other in the 1st defendant's name
- 5.Ordered that the plaintiff's portion to include the part of the land she is currently occupying
- 6.Authorized the Deputy Registrar to sign all requisite documents to give effect to the judgment
- 7.Directed the land registrar to dispense with production of titles, land control board consent and other documents that may hinder execution of the judgment
- 8.Discharged any subsisting orders of inhibition, injunction, caution or restrictions in respect of the suit premises
- 9.Ordered the 1st defendant to pay costs of the suit to the plaintiff
- 10.Granted the 2nd defendant liberty to pursue his claim against the 1st defendant in separate proceedings
- Jurisdiction invoked
- Original civil jurisdiction of the High Court/Environment and Land Court over a trust and adverse possession claim relating to land (Originating Summons jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Wanjiru Njonjo v Njubi Karungari & another [2019] KEELC 3557 (KLR)", Case Analysis (2019). ELC 232 of 2017 (originally filed 26.10.1990). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3557/eng@2019-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.