Grace Wambui Muchoki & another v John Karanja Muchoki & 3 others [2021] KEELC 4684 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiffs have proven customary trust
- 2.Whether the resultant titles should be cancelled
- 3.Who meets the costs of the suit
Key legal issues
#Whether the Plaintiffs proved a customary trust over the suit land
The court found the 1st Defendant held parcel 2895 and all subsequent subdivisions in trust for the Plaintiffs and himself in equal shares, as eldest son ('muramati') of the 2nd House.
Applying the M'Inanga elements, the land was family land registered in the name of the family patriarch; the claimants are mother and sons of the registered proprietor; the relationship is not remote; the claimants could not be registered due to intervening circumstances (minority, lack of ID, ill health, cost); and the claim is directed at a registered proprietor who is family. Uncontroverted evidence of the father's 1988/89 subdivision meetings supported the trust, and the 1st Defendant's claim to have purchased/redeemed the land collapsed when his witness recanted and the sale agreements were found to be forgeries.
Whether the resultant titles, including those of the 3rd and 4th Defendants, should be cancelled
The titles were cancelled; customary trust binds resultant titles through successive subdivisions, and the 3rd and 4th Defendants were not bona fide purchasers as the sales occurred during pending litigation (lis pendens).
Customary trust as an overriding interest moves with the land notwithstanding subdivision. The subdivision and sales were carried out during the pendency of JR cause No. 9 of 2006 and LDT No. 41 of 2009, attracting the doctrine of lis pendens. The 3rd and 4th Defendants admitted they had not taken possession because family members occupied the land, showing inadequate due diligence; they could not acquire a better title than the 1st Defendant held in trust.
Costs of the suit
Costs awarded to the Plaintiffs.
The Plaintiffs succeeded on their claim against all Defendants, and costs followed the event.
Legal principles established
#- Customary trust is an overriding interest under section 28(b) of the Land Registration Act which need not be registered and binds the land through subsequent subdivisions.
- The legal burden of proving a customary trust rests on the party asserting it, per the elements set out in M'Inanga v M'Linturi.
- A purchaser during the pendency of litigation over the property is bound by the doctrine of lis pendens and acquires no protectable title.
- A bona fide purchaser must prove a valid legal title, due diligence, and payment of valuable consideration.
Court orders
#- 1.Declaration that the sub-division of LOC.6/GIKARANGU/3634 into LOC.6/GIKARANGU/4311, 4313, 4458 and 4459 was tainted by fraud and illegality and that those titles be cancelled for the land to revert to its original status and registration as LOC.6/GIKARANGU/3634 in the name of the 1st Defendant as trustee
- 2.Declaration that the trust binding parcel LOC.6/GIKARANGU/3634 be dissolved and the land shared: Grace Wambui Muchoki 2.0 acres (in trust for herself and daughters Eunice Njeri, Mary Muthoni and Felister Wanjiru); Paul Njuguna Muchoki 2.0 acres; John Karanja Muchoki 0.9 acres
- 3.The Deputy Registrar of the Court ordered and authorised to sign all documents and forms on behalf of the 1st Defendant to facilitate the subdivision and transfer, and the District Land Registrar, Murang'a allowed and authorised to dispense with production of the old title number LOC.6/GIKARANGU/3634 retained by the Defendant if he does not cooperate
- 4.Costs in favour of the Plaintiffs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- First-instance civil suit under the Land Registration Act, 2012 (customary trust as overriding interest under section 28(b))
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the end I find that the Plaintiffs have proven their case. I enter judgement in their favour against the Defendants as follows;
It is hereby declared that the sub-division of land parcel Number LOC.6/GIKARANGU/3634 into subsequent title numbers
It is hereby ordered and declared that the trust binding and encumbering land parcel LOC.6/GIKARANGU/3634 be dissolved and the land be shared out as follows;
It is trite that under section 28 of the Land Registration Act that customary trust is an overriding interest and it matters not how many times the land is subdivided; the resultant titles continue to be bound by customary trust. It is an interest that binds and moves with the land.
With this evidence the testimony of DW2 was rendered untenable and the court finds that the agreements are forgeries which the 1 st Defendant propped up for purposes of defeating the claim of the Plaintiffs.
Going by their evidence the court does not find the 3 rd and 4th Defendants as bonafide purchasers.
Issues in the judgment
#Paragraph numbering is irregular, jumping from 63 to 67 after the final orders
The party name in the first authority appears garbled with inconsistent spelling of the deceased's name (Kingori/Kinguri/Muchoki) throughout
The court refers to a 'muramati' being the 1st born son while also noting the 1st born child of the house was a daughter, without reconciling the point
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Grace Wambui Muchoki & another v John Karanja Muchoki & 3 others [2021] KEELC 4684 (KLR)", Case Analysis (2021). Not stated in the judgment as provided (plaint filed 15/5/2017, amended 9/11/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4684/eng@2021-01-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.