Moses Mbogo Gachango & another v Ruth Wanjiru Nganga & another [2020] KEELC 2485 (KLR)
The bottom line
#A Kenyan court confirmed that family land held in one person's name can still be subject to a customary trust entitling relatives to a half share.
What this practically means
#Executive summary
#Key legal issues
#Whether a customary trust arose over LOC2/KANGARI/1000 in favour of Josiah
The Plaintiffs proved a customary trust on a balance of probabilities; Suleiman held half the suit land in trust for Josiah and his beneficiaries
The land originated as parcel 450 registered in the name of Gachango Kiarie, father of the parties, and was family land admitted by the Defendants. Suleiman did not purchase it. Josiah lived on and planted tea on the land and never renounced his share. Rahab's allowing the Plaintiffs to occupy the land supported the inference of family land. The Court found no evidence that Josiah sold parcel 46 or acquired Londiani land as his share.
Whether the Defendants' claim that Josiah was a half-brother who received his share undermined the trust claim
The Court found there was no evidence to support the claim that Josiah and Suleiman were half-brothers, and the evidence that Josiah sold parcel 46 was shaky and unbelievable since Josiah died before the 1970 transfer
The 2nd Plaintiff denied knowledge of the half-brother claim and the Defendants led no independent evidence on family lineage. The transfer of parcel 46 to Gakuiya Waruingi on 12/8/1970 postdated Josiah's death on 14/12/1969, and parcel 46 was registered in Suleiman's name anyway.
Whether registration of the land in Suleiman's name extinguished the customary trust
Registration did not extinguish rights under Kikuyu customary law; a customary trust is an overriding interest under Section 28(b) of the Land Registration Act that binds registered land
Relying on Kanyi v Muthiora and the statutory scheme of the Land Registration Act (mirroring sections 27, 28 and 30 of the repealed Registered Land Act), the Court held that the trust survives registration in the name of a sole proprietor.
Legal principles established
#- A customary trust need not be registered on the title; it is an overriding interest that subsists on and binds the land
- Customary law trust is proved by leading evidence on the history (root) of the suit property and the relevant customary law on which the claimants subscribe
- The legal burden to prove the existence of a customary trust rests with the party asserting the right
- A trust is never implied by the Court save in case of absolute necessity; the intention to create a trust must be clearly determined
- One claiming a right to title through customary trust need not be in possession of the land
Court orders
#- 1.Declared that SULEIMAN NGANGA (deceased) held half of the land parcel No LOC2/KANGARI/1000 in trust for JOSIAH GACHANGO MWANGI (deceased) and his personal representatives' survivors and beneficiaries
- 2.Each party to bear their own costs of the suit
- Jurisdiction invoked
- Referral from the succession court directing the trust claim to be canvassed in the ELC; customary trust under Section 28(b) Land Registration Act and Article 60(1)(a) Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Mbogo Gachango & another v Ruth Wanjiru Nganga & another [2020] KEELC 2485 (KLR)", Case Analysis (2020). ELC Case of Muran'a (as per judgment text; number not printed in excerpt). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2485/eng@2020-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.