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ELCPartially AllowedELC Case (Murang'a) — Plaint dated 19th October 2020 (number not stated in judgment)· [2022] KEELC 2261 (KLR)

Ngugi v Kamau & another (Environment & Land Case 36 of 2020) [2022] KEELC 2261 (KLR)

Environment and Land Court
23 June 2022
7,820 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 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 Plaintiff sued the 1st and 2nd Defendants seeking declarations that parcel LOC.4/Gakarara/1156/23 (Kandara Market) was held by his late eldest brother, Paul Kamau Ngugi, in customary trust for himself, his siblings and the three widows of their father Samson Ngugi Kamau; that subsequent transfers through two succession causes and the sale to the 2nd Defendant were irregular; and for cancellation of the 2nd Defendant's registration. The Defendants denied the trust, pleaded res judicata, and asserted the 2nd Defendant was a bona fide purchaser for value. The Court framed five issues and held, applying the Supreme Court's criteria in Isack Kieba M'inanga, that the plaintiff proved a customary trust on a balance of probabilities: the land was family land transferred to the eldest son as muramati, rent was shared among the three houses, and the 1st Defendant could offer only inadmissible hearsay on the creation of the trust. The suit was not res judicata since trust was never determined in prior succession litigation. The 2nd Defendant, who did due diligence and a search before paying Kshs. 4,950,000/-, was a bona fide purchaser without notice; yet, because the land was irregularly included in the estates of Paul Kamau Ngugi and Rebecca Njeri Kamau, the 1st Defendant had no good title to pass, and the 2nd Defendant's certificate was cancelled under Section 80 of the Land Registration Act. Judgment was entered for the plaintiff as prayed; the customary trust was dissolved and the property ordered shared equally among the brothers as represented by the three houses or their heirs. Each party was directed to bear its own costs.

Key legal issues

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01

Whether a customary trust subsists over the suit land

Holding

Yes — the plaintiff proved on a balance of probabilities that Paul Kamau Ngugi held the suit land in trust for himself and his siblings including the plaintiff

Reasoning

The land was originally owned by Samson Ngugi Kamau, a polygamist, who transferred it to his eldest son Paul Kamau Ngugi & Bros. Under Kikuyu customary law the eldest son holds land as muramati in trust for all heirs. Rent from the land was shared equally among the three houses. The 1st Defendant, born after the trust was created, could only give hearsay evidence and produced no evidence that 'Bros' meant only maternal brothers.

p. 10
02

Whether the 2nd Defendant is a bona fide purchaser for value without notice

Holding

Yes — the 2nd Defendant met the criteria of a bona fide purchaser

Reasoning

The 2nd Defendant conducted due diligence including a physical visit and an official search showing the vendors as registered owners, paid Kshs. 4,950,000/- and obtained vacant possession. There was no evidence of bad faith or knowledge of any irregularity; he reasonably relied on the register.

p. 12
03

Whether the 1st Defendant had a good title to pass

Holding

No — the 1st Defendant's title was tainted with irregularity and illegality

Reasoning

Since the suit land was trust property, it could not lawfully have been included in the estates of Paul Kamau Ngugi or Rebecca Njeri Kamau. The 1st Defendant's derivative title through two succession causes was therefore irregular and he could not pass a good title, notwithstanding the 2nd Defendant's innocence.

p. 12
04

Whether the 2nd Defendant's title should be cancelled

Holding

Yes — the title was ripe for cancellation under Section 80 of the Land Registration Act

Reasoning

Although the certificate of title is prima facie evidence of ownership and the 2nd Defendant was innocent of fraud, Section 80 permits the Court to order rectification where registration was obtained by fraud or mistake. Irregularity having been established, cancellation issued notwithstanding the far-reaching consequences.

p. 13
05

Whether the suit is res judicata

Holding

No — the issue of trust has not been at the core of the prior litigation

Reasoning

Various rulings and judgments had been delivered concerning the amended Certificate of Confirmation of Grant, including its nullification in Nairobi Succession Cause 605 of 2002. However, the issue of trust over the land had not been determined in those matters, so the instant suit was not barred.

p. 6

Legal principles established

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  • Customary trust is an overriding interest that need not be noted on the register and survives registration of land in a proprietor's name
  • The burden of proving a customary trust rests on the party asserting it and must be discharged by leading evidence laying bare the root of title
  • A party who derives title through an irregular inclusion of trust land in a succession estate does not acquire a good title capable of passing to a purchaser
  • Only a court of law may cancel or amend a title to land on the basis of fraud or mistake under Section 80 of the Land Registration Act

Court orders

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  1. 1.Judgment entered for the Plaintiff against the Defendants jointly and severally as prayed in the Plaint in terms of Prayers No. (a), (b), (c), (d) and (e)
  2. 2.Cancellation of the registration of parcel No. LOC.4/Gakarara/1156/23 in the name of the 2nd Defendant
  3. 3.The Customary Trust over the suit property dissolved and the suit property shared equally among the brothers as represented by the three houses and/or their heirs
  4. 4.Each party to bear his own costs

Authorities

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Legislation

  • Law of Succession ActCap 160 Laws of Kenya
  • Registered Land Act (repealed)Sections 27, 28, 30, Cap 300
  • Land Registration ActSections 24, 25(1), 26, 28, 79, 80
  • Constitution of Kenya 2010Article 40
  • Civil Procedure ActSection 27

Cases cited (19)

  • Isack Kieba M'inanga v Isaaya Theuri M'Lintari & another
    [2018] eKLR
  • Kanyi vs Muthiora
    (1984) KLR 712
  • Njenga Chogera –vs- Maria Wanjira Kimani & 2 Others
    [2005] eKLR
  • Muthuita –vs- Muthuita
    [1982 – 88] 1 KLR 42
  • Peter Ndungu Njenga vs. Sophia Watiri Ndungu
    [2000] eKLR
  • Juletabi African Adventure Limited & Another Vs Christopher Michael Lockley
    [2017] eKLR
  • Justus Maina Muruku v Jane Waithira Mwangi
    [2018] eKLR
  • Henry Mwangi vs Charles Mwangi
    CA 245 of 2004
  • Lawrence Mukiri v Attorney General & 4 Others
    [2013] eKLR
  • Katende v Haridar & Company Limited
    [2008] 2 E.A.173
  • Weston Gitonga & 10 others v Peter Rugu Gikanga & another
    [2017] eKLR
  • Elizabeth Wambui Githinji & 29 others Vs Kenya Urban Roads Authority & 4 others
    [2019] eKLR
  • Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others
    [2013] eKLR
  • Republic v Kisumu District Lands Officer & another
    [2010] eKLR
  • Super Nova Properties Limited & another v District Land Registrar Mombasa & 2 others; Kenya Anti-Corruption Commission & 2 others (Interested Parties)
    [2018] eKLR
  • Party of Independent Candidate of Kenya & another v Mutula Kilonzo & 2 others
    [2013] eKLR
  • Levben Products v Alexander Films (SA) (PTY) Ltd
    1957 (4) SA 225 (SR) at 227
  • Lwanga V. Registrar of Titles
    Misc. Cause No. 7A of 1977 (1980) HCB 24
  • Kiarie v. Kinuthia
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) constitutional jurisdiction implied by the court's nature; not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ngugi v Kamau & another (Environment & Land Case 36 of 2020) [2022] KEELC 2261 (KLR)", Case Analysis (2022). ELC Case (Murang'a) — Plaint dated 19th October 2020 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2261/eng@2022-06-23

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