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ELCDismissedNot stated in judgment· [2021] KEELC 128 (KLR)

Kaburu M’Mugira v David Kagiri Mugira [2021] KEELC 128 (KLR)

Environment and Land Court
15 December 2021
1,951 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court confirmed that registered land can still be held under a customary trust for a family member who helped buy and occupies it.

What this practically means

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Executive summary

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The appellant appealed against a lower court decree in which the respondent, suing his elder brother, had obtained a declaration that the appellant held Parcel No. Abogeta/Nkachie/2010 in trust for him, together with an order for subdivision and transfer, based on monies sent between 1962 and 1972 to purchase the land and the construction of a house for the respondent. The appellant argued the trust was unproved, that no sale agreement existed for the Kshs. 6,500/= said to have been sent, that the court relied solely on the built house and approval to reside, ignored his testimony, and disregarded his written submissions. The court, as a first appellate court, re-evaluated the record while mindful the trial court had seen and heard the witnesses. It applied the Supreme Court's elements of customary trust in M'Inanga Kiebia. It found the appellant's evidence on the date of purchase contradictory (1968 in the defence, 1975 in testimony, 1977 in his affidavit); he admitted two acres were ancestral land, admitted building the respondent a house and permitting occupation since about 1978; he never cross-examined PW3 on the remittances or land sharing, never pleaded licence or trespass, and never sought vacant possession. The court held customary rights survived registration under the repealed Registration of Land Act, that possession with approval was proved on a balance of probabilities, and that the licence authorities did not apply absent notice to vacate. The appeal was found to lack merit and was dismissed with costs to the respondent.

Key legal issues

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01

Whether a customary trust over Parcel No. Abogeta/Nkachie/2010 was proved

Holding

The trust was proved: the respondent's monies funded the purchase, he was in possession with the appellant's approval, and 2 acres were admitted ancestral land

Reasoning

The court applied the Supreme Court's elements of customary trust from M'Inanga Kiebia. The respondent's witnesses consistently testified to remittances sent through an agent between 1962 and 1972, before registration in 1975. The appellant admitted 2 acres were ancestral land, admitted building the respondent a house and allowing occupation since 1978, and never pleaded that the respondent was a licensee or trespasser, nor sought vacant possession. Occupation with approval proved possession on a balance of probabilities, and registration did not extinguish customary rights.

p. 3
02

Whether the appellant's evidence on the purchase was credible

Holding

The appellant's evidence on dates of purchase was contradictory, undermining his claim of sole purchase

Reasoning

The appellant pleaded purchase from Joseph Kanoro Mburu in 1968, testified to 1975, and deponed in his affidavit of 30.1.2018 to 1977. Neither party called the vendor. The contradictions, coupled with failure to challenge PW3's testimony on remittances and land sharing in cross-examination, led the court to prefer the respondent's evidence over the appellant's.

p. 2
03

Whether the respondent was a licensee at the mercy of the appellant

Holding

In the absence of any notice to vacate or claim of licence or trespass, occupation could not be treated as that of a licensee

Reasoning

The appellant never pleaded licence or trespass, never sought vacant possession or eviction in his defence, witness statement, testimony or submissions, and could not explain the terms or duration of the respondent's permitted occupation. Authorities on licence were therefore inapplicable. The only inference was that the appellant acknowledged the respondent's rights to use and occupy the suit land.

p. 3

Legal principles established

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  • A first appellate court must reconsider the evidence and reach its own conclusions while mindful the trial court saw and heard the witnesses
  • Possession and use of land in a trust claim is a fact to be proved on a balance of probabilities
  • Registration of land does not extinguish customary rights of family members in occupation

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The appellant to pay costs of the appeal

Authorities

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Legislation

  • Evidence ActSection 109
  • Registration of Land Act (repealed)Sections 28, 30 and 126(1)
  • Land Registration ActNot specified

Cases cited (9)

  • Selle and another v Associated Motor Boat Company Ltd and others
    [1968] 1 EA 123
  • Joel Musembi Kithuku –vs- Bernadet Mbatha & Another
    [2017] eKLR
  • Isack M'Inanga Kiebia –vs- Isaya Theuri M'Lintari & another
    [2015] eKLR
  • Isaack M'Inianga Kiebia –vs- Isaya Theuri M'Lintari & Another
    [2018] eKLR
  • Kangi –vs- Muthiora
    [1984] KLR 712
  • Chogera –vs- Marin Wanjiru Kimani & 2 Others
    [2005] eKLR
  • Mbui Mukunga –vs- Gerald Mutwiri Mbui
    [2004] eKLR
  • Gathiba –vs- Gathiba
    [2001] 2 E.A 342
  • Monica Mukulu Muteti –vs- Mutava Maingi
    [2019] eKLR
On appeal from
Magistrates' Court (trial court)
Not stated in judgment
Jurisdiction invoked
First appeal from the subordinate court to the Environment and Land Court

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, "Kaburu M’Mugira v David Kagiri Mugira [2021] KEELC 128 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/128/eng@2021-12-15

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