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ELCPartially AllowedNot stated in judgment (Kiambu ELC suit re Gatamaiyu/Nyanduma/3330 & 3331)· [2020] KEELC 3306 (KLR)

Elijah Mburu Wanyoike v Regina Wanjiru Nganga & another [2020] KEELC 3306 (KLR)

Environment and Land Court
3 March 2020
3,484 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan buyer who purchased family land from one sibling lost his title because the seller held it in trust for other family members who never consented.

What this practically means

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Executive summary

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The Plaintiff, Elijah Mburu Wanyoike, sued for eviction of the Defendants and a permanent injunction over parcels Gatamaiyu/Nyanduma 3330 and 3331, which he purchased from Samuel Ndungu Nganga under a sale agreement dated 5th November 2015 for Kshs.2,400,000 and of which he was the registered proprietor. The Defendants, siblings of the vendor, by amended defence and counterclaim dated 20th July 2018, sought dismissal of the suit, cancellation of the Plaintiff's title, registration of the parcels in their names and general damages, contending the vendor had held the original parcel 654 in trust for the family. The court framed four issues. Relying on the Kiambu Land Disputes Tribunal proceedings, whose award had been adopted as a court order and never overturned, and applying the Supreme Court's elements of customary trust in Isack Kieba M'Inanga, the court held that Samuel Ndungu Nganga held the land in trust for the Defendants. It found the Plaintiff never took possession, the Defendants were long in occupation, and the vendor required their consent before selling. The sale was held illegal and the Plaintiff's title impeachable under sections 26 and 28 of the Land Registration Act, warranting rectification under section 80. The Plaintiff's suit was dismissed; the counterclaim was allowed only in terms of prayers (a) and (b). The court cancelled and revoked the subdivisions, ordered reversion to the mother title and fresh subdivision giving each Defendant 0.87 acres per the tribunal award, with the Plaintiff to seek recourse from the vendor's estate. Each party was to bear its own costs.

Key legal issues

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01

Whether the registered owner held the land in trust for his siblings (customary trust)

Holding

Yes - the Kiambu Land Disputes Tribunal award, adopted as a court order and never overturned, established that Samuel Ndungu Nganga held the land in trust for the Defendants.

Reasoning

The tribunal proceedings produced by the Defendants established the trust and were adopted as an order of the court; there was no evidence of appeal or overturning. The court applied the Supreme Court's test in Isack Kieba M'Inanga on the elements of customary trust, holding the Defendants were beneficiaries with an interest in the land.

p. 3
02

Whether the Plaintiff was entitled to eviction and injunction

Holding

No - the Plaintiff never took possession, the Defendants were long in occupation, and the vendor needed their consent before selling.

Reasoning

The court found the Defendants were in possession and occupation before the sale; no allocation of specific portions had ever been made. Since the vendor held in trust, he required the beneficiaries' consent before selling. The Plaintiff had not proved his case on a balance of probability.

p. 3
03

Whether the Plaintiff's title should be cancelled and revoked

Holding

Yes, partially - the title was impeachable because it was acquired without following the proper procedure given the subsisting customary trust, warranting rectification under section 80 of the Land Registration Act.

Reasoning

Section 26 permits challenge where a title is acquired illegally, unprocedurally or through a corrupt scheme. The sale was unlawful because the vendor held in trust and sold without the beneficiaries' consent or involvement. Customary trusts are overriding interests under section 28(1)(b). The court ordered revocation of the subdivisions and reversion to the mother title.

p. 4
04

Costs

Holding

Each party to bear its own costs under the court's discretion under section 27 of the Civil Procedure Act.

Reasoning

Exercising its discretion under section 27 of the Civil Procedure Act, and in the circumstances of the case, the court found each party should bear its own costs.

p. 4

Legal principles established

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  • Customary trust is an overriding interest on registered land under section 28 of the Land Registration Act, and a title acquired without the consent of beneficiaries of such a trust is impeachable.
  • The court may order rectification of the register where a registration was obtained by fraud or mistake.

Court orders

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  1. 1.Plaintiff's suit dismissed with no orders as to costs.
  2. 2.Defendants' counterclaim allowed in terms of prayers (a) and (b) only, with no orders as to costs.
  3. 3.Cancellation and revocation of the subdivisions of LR No. Gatamaiyu/Nyanduma/654 (being parcels 3330 and 3331) done without the consent of the defendants, in accordance with section 80(1) of the Land Registration Act, and reverting to the mother title.
  4. 4.Declaration that each Defendant is entitled to 0.87 acres from the initial parcel Gatamaiyu/Nyanduma/654, with subdivision so that each Defendant obtains her share of 0.87 acres as per the tribunal's award.
  5. 5.Plaintiff to obtain the equivalent of what he purchased from the estate of the late Samuel Ndungu Nganga, from the remainder of the land after the Defendants' shares, with involvement of the beneficiaries or representatives of the estate.
  6. 6.Each party to bear its own costs.

Authorities

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Legislation

  • Land Registration ActSection 26(1)(a) and (b)
  • Land Registration ActSection 28(1)(b)
  • Land Registration ActSection 80(1)
  • Civil Procedure ActSection 27

Cases cited (3)

  • Alice Wairimu Macharia v Kirigo Philip Macharia
    [2019] eKLR
  • Isack Kieba M'Inanga v Isaaya Theuri M'Lintari & Another
    SCoK No 10 of 2015
  • Kiarie v. Kinuthia
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (not expressly cited in the judgment)

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, "Elijah Mburu Wanyoike v Regina Wanjiru Nganga & another [2020] KEELC 3306 (KLR)", Case Analysis (2020). Not stated in judgment (Kiambu ELC suit re Gatamaiyu/Nyanduma/3330 & 3331). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3306/eng@2020-03-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.