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ELCPartially AllowedNot stated in the judgment· [2020] KEELC 3600 (KLR)

Celina Warui Muriuki v Virginia Wanjiru Nguu [2020] KEELC 3600 (KLR)

Environment and Land Court
24 January 2020
ECE.C. Cherono
1,954 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court ruled that family land registered in one sister's name was held in trust, ordering half an acre transferred to her sibling.

What this practically means

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Executive summary

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The plaintiff sued her sister, the defendant, seeking determination of a trust over L.R. BARAGWI/KARIRU/2381, transfer of half an acre to her, vacant possession, and costs. The parties are daughters of the late Nguu Nganyu, who in 2009 subdivided ancestral parcel BARAGWI/KARIRU/198 into four portions, registering two acres jointly in the names of the defendant and her mother, Margaret Wamarwa Nguu, with the mother's name later deleted by operation of law upon her death, leaving the defendant sole registered proprietor. The plaintiff testified that the defendant holds the parcel in trust for herself and her sisters Esther Murangi and Martha Micere; her brother Charles Njeru Nguu corroborated this. The defendant acknowledged the joint registration but asserted sole proprietorship by operation of law; her witness, sister Esther Murangi, said the sisters had agreed to register the land in the unmarried defendant's name. The court applied Section 28 of the Land Registration Act, 2012 and authorities including Kanyi v Muthiora and Mwangi v Mwangi, holding that a customary trust is an overriding interest need not be registered and that registration does not extinguish rights under Kikuyu Customary Law. The court found that the joint registration was to hold the land in trust for the sisters, rejected the defence explanation, and allowed the claim: it determined the trust, ordered transfer of half an acre to the plaintiff, vacant possession with eviction on default, and each party to bear her own costs given the family relationship.

Key legal issues

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Whether a customary trust exists in L.R. BARAGWI/KARIRU/2381

Holding

The defendant and her mother were registered jointly to hold the ancestral land in trust for themselves and the other daughters; a customary trust was created upon registration

Reasoning

The court accepted that customary trust need not be registered, being an overriding interest under Section 28 of the Land Registration Act, 2012. The suit land was ancestral/clan land entitling family members to equal rights. The defendant and her mother were registered over two acres, twice what each brother received, and the defendant did not explain why only they were registered jointly. The defence explanation that the daughters had chosen not to take a share was rejected as lacking substance.

p. 3

Legal principles established

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  • A customary trust is an overriding interest under Section 28 of the Land Registration Act, 2012 and need not be registered on the register
  • Registration of land in the name of one party does not extinguish the rights of others entitled under Kikuyu Customary Law
  • One must look at the circumstances surrounding registration to determine whether a trust was intended

Court orders

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  1. 1.Determination of trust in L.R. BARAGWI/KARIRU/2381
  2. 2.Transfer of half (½) acre out of L.R. No. BARAGWI/KARIRU/2381 to the plaintiff
  3. 3.An order that the defendant gives vacant possession of ½ acre out of L.R. No. BARAGWI/KARIRU/2381 to the plaintiff failing which the defendant by herself or her agents and/or servants and/or employees to be evicted therefrom in accordance with the law
  4. 4.Each party to bear her own costs

Authorities

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Legislation

  • Registered Land Act (repealed)Section 28
  • Land Registration ActSection 28

Cases cited (5)

  • JASON GATIMU WANGARA VS MARTIN MUNENE WANGARA & OTHERS
    (2013) e K.L.R
  • MUMO VS MAKAU
    (2004) 1 K.L.R 13 (C.A)
  • KANYI VS MUTHIORA
    (1984) K.L.R. 712 (C.A)
  • MUKANGU VS MBUI
    (2004) 2 K.L.R 256
  • MWANGI & ANOTHER VS MWANGI
    (1986) 328
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land trusts (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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Celina Warui Muriuki v Virginia Wanjiru Nguu [2020] KEELC 3600 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3600/eng@2020-01-24

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