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ELCAllowedNot stated in the judgment as provided (plaint filed 15/5/2017, amended 9/11/2017)

Grace Wambui Muchoki & another v John Karanja Muchoki & 3 others [2021] KEELC 4684 (KLR)

Environment and Land Court
14 January 2021
5,914 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiffs, mother and son of the second house of the late Daniel Muchoki Kingori, sued the 1st Defendant (eldest son of the same house) alleging that he held the family land, ultimately parcel LOC.6/GIKARANGU/3634, in customary trust for himself and the Plaintiffs in equal shares. They complained that he subdivided the land and sold portions to the 3rd and 4th Defendants during the pendency of earlier proceedings. The Plaintiffs sought cancellation of the resultant titles (4311, 4313, 4458, 4459), dissolution of the trust and distribution of the land, with consequential orders. The 1st Defendant denied the trust, asserting he redeemed family land from purchasers and effectively bought it from his father; the 3rd and 4th Defendants claimed to be purchasers for value without notice. The court framed three issues: proof of customary trust, cancellation of resultant titles, and costs. Applying section 28(b) of the Land Registration Act and the Supreme Court's elements in M'Inanga v M'Linturi, the court found the trust proved: the land was family land, the parties are family, and the 1st Defendant was registered as eldest son ('muramati'). His defence of purchase/redeemption collapsed when DW2 recanted and the sale agreements were held to be forgeries. The subdivision and sales offended lis pendens, and the 3rd and 4th Defendants were not bona fide purchasers, having taken no possession. The court entered judgment for the Plaintiffs: the resultant titles were declared tainted by fraud and cancelled to revert to parcel 3634 in the 1st Defendant's name as trustee; the trust was dissolved with distributions of 2 acres to each Plaintiff and 0.9 acres to the 1st Defendant; the Deputy Registrar was authorised to sign transfer documents; and costs were awarded to the Plaintiffs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Plaintiffs have proven customary trust
  2. 2.Whether the resultant titles should be cancelled
  3. 3.Who meets the costs of the suit

Key legal issues

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01

Whether the Plaintiffs proved a customary trust over the suit land

Holding

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.

Reasoning

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.

p. 6
02

Whether the resultant titles, including those of the 3rd and 4th Defendants, should be cancelled

Holding

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).

Reasoning

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.

p. 6
03

Costs of the suit

Holding

Costs awarded to the Plaintiffs.

Reasoning

The Plaintiffs succeeded on their claim against all Defendants, and costs followed the event.

p. 7

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.Costs in favour of the Plaintiffs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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;
p. 7disposition
It is hereby declared that the sub-division of land parcel Number LOC.6/GIKARANGU/3634 into subsequent title numbers
p. 7declaration of fraud and illegality and cancellation of resultant titles
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;
p. 7dissolution of trust and distribution
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.
p. 6customary trust as overriding interest
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.
p. 5forged agreements
Going by their evidence the court does not find the 3 rd and 4th Defendants as bonafide purchasers.
p. 7bona fide purchaser doctrine

Issues in the judgment

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minor

Paragraph numbering is irregular, jumping from 63 to 67 after the final orders

minor

The party name in the first authority appears garbled with inconsistent spelling of the deceased's name (Kingori/Kinguri/Muchoki) throughout

minor

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

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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, "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.