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ELCPartially AllowedELC Cause Number 287 of 2010 (Kerugoya), consolidated with PMCC No. 162 of 2010 (Kerugoya) and Misc. Application No. 782 of 2001 (Nairobi)· [2021] KEELC 2119 (KLR)

Anne Muthoni Kanyeki & another v Nyaga Gichenge & 3 others [2021] KEELC 2119 (KLR)

Environment and Land Court
23 July 2021
4,296 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled clan land given to a firstborn son belongs to the whole family, cancelling fraudulent transfers and restoring family shares.

What this practically means

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Executive summary

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This consolidated Environment and Land Court suit at Kerugoya arose from a long family land dispute over L.R. No. INOI/KARIKO/252, now INOI/KARIKO/930. The plaintiffs, sisters-in-law of the 1st defendant and widows/successors of his two brothers, sought a permanent injunction, a declaration that the 1st defendant's gift transfers of the land to the 2nd and 3rd defendants were fraudulent and void, cancellation of those transfers, and costs. The plaintiffs testified they had occupied and cultivated the land since 1965, and that the 1st defendant, the first born son given the land by the clan during adjudication, obtained ex parte High Court orders in Misc. Application No. 782 of 2001 cancelling earlier sub-divisions and reinstating sole title in his name, then transferred portions to the 2nd and 3rd defendants in 2010 using a forged court order to lift a caution. He was convicted in Criminal Case No. 594 of 2010 and sentenced to one year probation, a conviction never set aside. The court framed four issues, principally whether the 1st defendant held the land in customary trust. Applying the Supreme Court's decision in Isack M'Inanga Kieba and taking judicial notice of Kikuyu customary law, the court found the clan allocated the land to the first born son to hold in trust for the family, and the 1st defendant failed to displace this with evidence of alternative family allocations. Judgment was entered declaring the customary trust, nullifying the gift transfers, and reinstating the three sub-divided titles, with each party bearing her own costs.

Key legal issues

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01

Whether the 1st defendant held the suit land in customary trust for the family

Holding

Yes. The clan allocated the land to the 1st defendant as first born son under Kikuyu customary law to hold in trust for himself and the family; he failed to displace the presumption of trust.

Reasoning

The court took judicial notice of Kikuyu customary law on clan land allocation during adjudication. The 1st defendant admitted the clan gave him the land, but produced no certificate of official search or title proving his father was allocated alternative parcels. Applying the Supreme Court's elements of customary trust in Isack M'Inanga Kieba, the court found the land was family land and the holding was for the family's benefit.

p. 5
02

Whether the interlocutory order cancelling the sub-divided titles should be vacated after full hearing

Holding

Yes. The cancellation was made at an interlocutory stage; after full hearing the court reinstated the three sub-divided titles.

Reasoning

The order cancelling titles 1091, 1092 and 1093 and reverting to the original title was made at an interlocutory stage pending criminal investigations. Having found a customary trust and that no criminal conduct attached to the creation of the sub-divided titles, the court exercised its discretion to reinstate the sub-divisions in accordance with the earlier allocations.

p. 6
03

Whether the transfer by gift of the suit premises to the 2nd and 3rd defendants was valid

Holding

No. The transfer was fraudulent and null and void, being effected using a forged court order to lift a registered caution.

Reasoning

The 1st defendant was convicted in Criminal Case No. 594 of 2010 for fraudulently transferring the suit property and sentenced to one year probation; that conviction was never appealed or set aside. The transfer was accomplished using a forged court order purportedly signed by Justice Aganyanya JA while he sat in the Court of Appeal, and despite a subsisting caution. The court therefore declared the transfer fraudulent, illegal, null and void and ordered its cancellation.

p. 5

Legal principles established

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  • Customary trust is an overriding interest on land notwithstanding registration; a proprietor holds title subject to any duty or obligation as trustee
  • Under Kikuyu customary law, the first born son given clan land during adjudication held it in trust for the family, not as individual property
  • A registered proprietor who denies holding land in trust bears the burden of disproving the trust by producing evidence such as a certificate of title or official search

Court orders

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  1. 1.A declaration that the 1st defendant Nyaga Gichenge holds land parcel INOI/KARIKO/252 now INOI/KARIKO/930 in trust for himself and the plaintiffs
  2. 2.A declaration that the transfer by way of gift of the suit premises by the 1st defendant to the 2nd and 3rd defendants was fraudulent, illegal, null and void, and the same to be cancelled forthwith
  3. 3.The suit land to be shared in terms of the previous sub-divisions being INOI/KARIKO/1091, 1092 and 1093
  4. 4.Reinstatement of the titles to the three sub-divisions: INOI/KARIKO/1091 (0.57 Ha) to the 1st defendant, INOI/KARIKO/1092 (0.81 Ha) to Cecilia Gakui Kinyua, and INOI/KARIKO/1093 (0.81 Ha) to Ann Muthoni Kanyeki
  5. 5.Each party to bear her own costs of the suit

Authorities

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Legislation

  • Land Registration ActSection 25(1) and 25(2)
  • Penal CodeSection 317 (conspiracy to defraud)
  • Penal CodeSection 349 (forgery)

Cases cited (2)

  • Isack M'Inanga Kieba Vs Isaaya Theuri M'Lintari & Isack Ntongai M'Lintari
    SCOK Petition 10 of 2015
  • Kiarie Vs Kinuthia
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land disputes, with consolidation of related suits

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, "Anne Muthoni Kanyeki & another v Nyaga Gichenge & 3 others [2021] KEELC 2119 (KLR)", Case Analysis (2021). ELC Cause Number 287 of 2010 (Kerugoya), consolidated with PMCC No. 162 of 2010 (Kerugoya) and Misc. Application No. 782 of 2001 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2119/eng@2021-07-23

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