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ELCAllowedNot stated in judgment (Busia ELC suit)· [2021] KEELC 1815 (KLR)

Joseph Ngira Manyasi v Getrude Juma Bwire & another [2021] KEELC 1815 (KLR)

Environment and Land Court
23 September 2021
AOA. OMOLLO
3,696 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that land registered in one person's name can still belong to a family if a customary trust existed when the land was first registered.

What this practically means

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Executive summary

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The plaintiff, sued on his own behalf and as legal representative of the estates of Owour Manyasi and Francis Manyasi Owour, sought a declaration that WANJALA NGAYO and the defendants held a 1/5 interest in land parcel BUNYALA/BULEMIA/361 (later excised as parcel 3849) in trust for the estate of Francis Manyasi Owour, together with rectification of the register to substitute the plaintiff's name and to strike out entries 8, 9 and 10 on parcel 3849. The defendants denied the trust, asserting absolute registration of Wanjala Ngayo following the 1985 adjudication, and alleged the plaintiff's claim was an afterthought following revocation of a grant in a succession cause. The court applied the Supreme Court's criteria in Isack M'Inanga Kieba v Isaaya Theuri M'Lintari on customary trusts. It found the land was family land before adjudication; that during adjudication Francis Manyasi Owour was bedridden in Uganda and elders required Wanjala Ngayo, a clan member who had inherited Owour's widows, to stand in; and that a 1977 letter by Wanjala corroborated the trust. The defendants' forgery allegation failed for want of proof under Section 107 of the Evidence Act, and they called no contradicting evidence. The court held a customary trust need not be entered on the register. Judgment was entered for the plaintiff with a declaration of trust, orders for rectification of the register, and costs.

Key legal issues

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01

Existence of a customary trust over the suit land

Holding

The court found that WANJALA NGAYO was registered to hold the 1/5 share in trust for the OWUOR MANYASI family because the elders on the adjudication panel required a mature person to stand in for a family whose adult member was ill in Uganda; the trust was proved and bound the defendants.

Reasoning

Applying the Isack M'Inanga Kieba criteria, the land was family land before registration, the claimant belonged to the family, and the registration of Wanjala was an intervening circumstance necessitated by illness. Wanjala's 1977 letter and the adjudication records corroborated the trust; the defendants, same clan members, led no contradicting evidence.

p. 4
02

Defendants' allegation of forgery of the 1977 letter

Holding

The forgery allegation failed because the defendants produced no expert or corroborative evidence to disprove the thumbprint.

Reasoning

The defendants asserted the 18/5/1977 letter was a forgery of unknown authorship but did not adduce a report to show the thumbprint was not Wanjala Ngayo's. Under Section 107 of the Evidence Act, the burden of proving the alleged forgery rested on them and was not discharged.

p. 4

Legal principles established

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  • A customary trust, if proved, binds a registered proprietor on first registration even though not entered on the register.
  • The burden of proving an allegation of forgery lies on the party alleging it.

Court orders

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  1. 1.Declaration that the late WANJALA NGAYO and subsequently the defendants held and continue to hold the interest of ownership of 1/5 of land parcel No. BUNYALA/BULEMIA/361 (excised as parcel No. BUNYALA/BULEMIA/3849) in trust for the estate of FRANCIS MANYASI OWUOR as represented by the plaintiff
  2. 2.Order directed at the County Land Registrar, Busia to rectify the register by striking out the name of WANJALA NGAYO from the register of land parcel Nos. BUNYALA/BULEMIA/361 and 3849 and inserting JOSEPH NGIRA MANYASI as legal representative of FRANCIS MANYASI OWUOR
  3. 3.Order directed at the County Land Registrar, Busia to rectify the register of Land Parcel No. BUNYALA/BULEMIA/3849 by striking out entries No. 8, 9 and 10 dated 17/2/2016, 18/2/2016 and 18/2/2016 respectively
  4. 4.Costs of the suit to the plaintiff

Authorities

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Legislation

  • Registered Land Act (repealed)Section 28 (proviso)
  • Evidence ActSection 107

Cases cited (1)

  • Isack M'Inanga Kieba versus Isaaya Theuri M'Lintari & another
    [2018] 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, "Joseph Ngira Manyasi v Getrude Juma Bwire & another [2021] KEELC 1815 (KLR)", Case Analysis (2021). Not stated in judgment (Busia ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1815/eng@2021-09-23

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