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ELCAllowedNot stated in judgment· [2021] KEELC 254 (KLR)

Tabitha Ngari M’Ikiara & another v SMM & 2 others [2021] KEELC 254 (KLR)

Environment and Land Court
20 December 2021
2,567 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court cancelled land sold despite family trust rights, proving a title deed alone doesn't guarantee ownership.

What this practically means

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Executive summary

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The plaintiffs sued over LR Abothuguchi/Githongo/418, registered in the name of the 1st defendant, the deceased's first-born son, while he was a minor, in trust for the family. The 1st defendant subdivided the parcel and sold portions to the 2nd and 3rd defendants, who pleaded they were bona fide purchasers for value. The 2nd plaintiff was joined as legal representative of the deceased 1st defendant's estate. The court framed two issues: whether the parcel and its subdivisions were ancestral/family land held in trust for the plaintiffs, and whether the plaintiffs participated in the subdivision, sale and transfer. The court found the plaintiffs proved a customary trust through mutation forms, searches, a scene visit report confirming continued occupation with traditional boundaries, and the existence of a caution from 1997, all unchallenged since the 1st defendant did not testify. The defendants failed to produce land control board consents, rendering the transactions void under Section 6(1)(a) of the Land Control Act. The purchasers' knowledge of family occupation and the caution defeated their innocent purchaser defence. Relying on the Kiebia decision and Sections 27, 28 and 30 of the repealed Registered Land Act and Section 28 of the Land Registration Act, the court held the resultant titles are subject to the plaintiffs' overriding interests. The plaintiffs' claim was allowed as per the amended plaint. No separate costs order appears in the judgment.

Key legal issues

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01

Whether a customary trust existed over Parcel No. 418 and the resultant subdivisions

Holding

A customary trust existed from the parent parcel; the resultant titles are subject to the overriding rights of the plaintiffs under Sections 28 and 30 (formerly sections 27, 28 and 30 of the repealed Registered Land Act).

Reasoning

The plaintiffs established through oral and documentary evidence how Parcel No. 418 came to be registered in the name of the 1st defendant at a tender age and that the deceased intended to subdivide it for the family. The 1st defendant never testified to challenge that evidence. The scene visit report confirmed the plaintiffs remained in occupation with traditional boundaries intact, and the search documents showed a caution existed from 1997, evidencing family interests.

p. 3
02

Whether the 2nd and 3rd defendants were bona fide purchasers for value without notice

Holding

They were not; their knowledge of family occupation, the caution and the history of the parent parcel defeated the innocent purchaser defence.

Reasoning

The defendants' own documents and testimony showed they knew the land belonged to the deceased's family and that the plaintiffs were in occupation. The sale agreements referenced vacant possession and land control board consents, meaning they were deemed aware of encumbrances. Had they done due diligence they would have discovered the plaintiffs' interests, including approaching the 1st plaintiff, a known spouse of the deceased.

p. 3
03

Whether the sale and transfers complied with the Land Control Act

Holding

No land control board consent was obtained or evidenced, rendering the transactions void under Section 6(1)(a) of the Land Control Act.

Reasoning

The suit land is agricultural land, so the transactions required land control board consent. The defendants produced no consent forms or minutes to demonstrate the sales and transfers were lawfully done or that the plaintiffs' consent was sought. Authority confirms a sale agreement over agricultural land is void if consent is not obtained.

p. 3

Legal principles established

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  • A customary trust subsists prior to first registration and binds subsequent purchasers with notice.
  • A purchaser cannot be a bona fide purchaser for value without notice where there is a tainted and irregular procedure leading to registration.
  • Occupation of family land by a spouse/family members amounts to an overriding unregistered interest under Section 28 of the Land Registration Act.

Court orders

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  1. 1.The suit is allowed as per the amended plaint dated 18.12.2017
  2. 2.Declaration that the suit land was held in trust for all the family members
  3. 3.Nullification of the resultant subdivisions and the suit land be combined so the District Land Registrar/Surveyor can subdivide it afresh among the named beneficiaries

Authorities

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Legislation

  • Land Control ActSection 6(1)(a)
  • Registered Land Act (repealed)Sections 27, 28 and 30
  • Land Registration ActSection 28

Cases cited (8)

  • Isack M'Inanga Kiebia –vs- Isaaya Theuri M'Lintari & Another
    [2018] eKLR
  • Felista Muthoni Nyaga –vs- Peter Kayo Mugo
    [2016] eKLR
  • Andriano Munyua Bonface Mutembei Gituma
    [2021] eKLR
  • Patrick Gitonga M'Ikiara –vs- Ruthson Mangati M'Ikiara & 5 Others
    [2020] eKLR
  • Mwangi & Another –vs- Mwangi
    [1986] KLR 328
  • Mugo Muiru Investments Ltd –vs- EWB & 2 Others
    [2017] eKLR
  • Richard Odual Opole –vs- Commissioner of Lands & 2 Others
    [2015] eKLR
  • Joseph Nyaga Njagi & 2 Others –vs- Michale Muchira Nduma & Another
    [2014] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to title to land

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, "Tabitha Ngari M’Ikiara & another v SMM & 2 others [2021] KEELC 254 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/254/eng@2021-12-20

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