Alexander Nyaga Mwake & 11 others v John Mwaniki Makenge & 2 others [2020] KEELC 2013 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that land registered in one man's name actually belonged to his clan, and his family cannot inherit it through succession.
What this practically means
#Executive summary
#Key legal issues
#Whether the deceased held the suit properties in trust for the Keere clan
Yes - the deceased and the Respondents were subject to a trust, holding the suit properties on behalf of members of Keere clan, not merely the Mucogo house
The court examined the Minister's Land Appeal Case No. 22 of 1976 decision which awarded the parcels to Timotheo Makenge 'and his clan', and the East African Court of Appeal judgment characterising the dispute as between Keere clan and Mururi clan. Evidence showed the deceased had distributed some parcels to clan members but died before completing distribution. His later acquisition of other land did not relieve him of trust obligations.
Whether the Applicants should be registered as proprietors in place of the Respondents
Partially - only the 1st Applicant to be registered as trustee, since the 2nd and 3rd Applicants did not pursue the matter
The court noted that although the 1st, 2nd and 3rd Applicants claimed to be current officials of the aggrieved clan members, the record showed that the 2nd and 3rd Applicants did not prosecute the matter. Since the original trustee was deceased and his sons were unfaithful to the trust, it was just to allow the 1st Applicant to take over the trust on behalf of the entitled beneficiaries.
Whether the decree should override the certificate of confirmation of grant in the succession cause
Yes - the suit properties were irregularly included in the succession cause as they were not the free property of the deceased
The Respondents, as children of the deceased, must have known the suit properties were trust properties when they conducted the succession proceedings. The properties did not constitute free property of the deceased under the Law of Succession Act (Cap. 160), so their inclusion in Succession Cause No. 65 of 1995 was irregular and the decree should override the grant.
Whether the Land Registrar should issue fresh titles to the Applicants
No - the Registrar may cancel existing titles but should not issue fresh titles to the trustee; individual titles to issue to ultimate beneficiaries upon allocation
The genesis of the dispute was registration of clan land in the name of an individual who failed to discharge his trust obligations for decades. Repeating that process would risk future disputes. The Registrar may recall, and upon failure to surrender, gazette and cancel the existing titles, but fresh titles should await allocation to deserving beneficiaries.
Who shall bear the costs of the suit
The 1st and 5th Applicants, as successful litigants, are awarded costs against the 1st and 3rd Respondents
Applying the proviso to Section 27 of the Civil Procedure Act (Cap. 21) and the principle in Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd, costs follow the event unless the court directs otherwise for good cause. The court found no good reason to deny the successful litigants their costs.
Legal principles established
#- Where land was awarded to a person on behalf of his clan, registration in his name creates a trust for the clan, and such land does not constitute free property of the deceased capable of distribution through succession proceedings
- A court of law should not allow succession proceedings to be used to defraud clan members of clan land held in trust
- Costs follow the event unless the court directs otherwise for good cause
Court orders
#- 1.A declaration that land Title Nos. Nthawa/Riandu/1568, 1569, 1570, 1571, 1793, 1794, 1796, 1797, 1798, 281 and 287 and Nthawa/Riandu/5916 and 5917 are Keere clan land liable to be distributed amongst landless Keere clan members
- 2.A declaration that the late Timothy Makenge Mucogo, Espon N.T. Makenge and Alfred Ngiri Marangi were registered as proprietors of the suit lands as Trustees for all landless Keere clan members
- 3.That the 1st Applicant be registered as Trustee of the suit parcels for the benefit of the rightful beneficiaries of Keere clan, but no title deeds to be issued to him; individual titles to issue to ultimate beneficiaries upon allocation
- 4.That the court's decree be registered against all the suit land parcels and override the confirmation of grant of probate in Succession Cause No. 65 of 1995 issued by the Principal Magistrate's Court in Embu
- 5.That should the Respondents fail to surrender the original land titles, the Land Registrar Embu or Mbeere District shall proceed to cancel the old titles
- 6.That the 1st and 5th Applicants are awarded costs of the suit to be borne by the 1st and 3rd Respondents
- Jurisdiction invoked
- Order 37 Rules 1(a), (b), (e) & (g) and Rule 2(c) of the Civil Procedure Rules (original civil jurisdiction over trust/land dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alexander Nyaga Mwake & 11 others v John Mwaniki Makenge & 2 others [2020] KEELC 2013 (KLR)", Case Analysis (2020). Originating Summons dated 18th August 1997, amended 4th October 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2013/eng@2020-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.