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ELCPartially AllowedEnvironment and Land Case Civil Suit 570 of 2011· [2022] KEELC 14742 (KLR)

Muthoni Kimani Ruingi & another v Francis Kimani Waruingi & 4 others

Environment and Land Court
10 November 2022
13,177 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~53 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled all titles flowing from a father's sale of ancestral family land, ruling the sale breached a customary trust.

What this practically means

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Executive summary

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The plaintiffs, the wife and children of the 1st defendant, sued over Title No. Kiambaa/Waguthu/1207, ancestral land the 1st defendant inherited from his father in 1996 and on which the family lived. They claimed he held it in customary trust and that its 2011 sale to the 2nd defendant, without their consent, was void. After the suit was filed, an injunction and later an inhibition issued; the 2nd defendant nonetheless subdivided the land into four portions, transferred one (No. 3432) to the 3rd defendant and, after consolidating the other three into No. 3455, sold it to the 4th defendant. He was convicted of contempt and fined, and ordered to deposit the Kshs. 4,500,000 purchase price in court. The 1st and 3rd defendants did not defend. The court, applying the proviso to section 28 of the Registered Land Act and the Supreme Court's decision in Isack M'inanga Kiebia, found the 1st defendant held the land in customary trust for the family; the wife's occupation gave her an overriding interest under section 30(g). The sale was in breach of trust and void, and all derivative titles were nullities, being founded on a void title and effected in disobedience of court orders and the lis pendens doctrine. The 4th defendant's director knew of the suit, defeating its bona fide purchaser claim; the 5th defendant failed to inquire into the occupation. The court cancelled all derivative titles, restored the original title to the 1st defendant with a trust entry, and released the deposited Kshs. 4,500,000 to the 4th defendant. However, it refused to compel distribution of beneficial shares during the 1st defendant's lifetime, holding Kikuyu customary law does not permit children or a wife to compel such sharing. Costs were awarded against the 2nd, 4th and 5th defendants in ratios of 50%, 25% and 25%.

Key legal issues

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01

Whether the 1st defendant held the suit property in customary trust for the plaintiffs

Holding

Yes; the property was ancestral land transferred under Kikuyu custom, the plaintiffs were family members in occupation, and the 1st defendant did not controvert the claim

Reasoning

The 1st defendant entered appearance but filed no defence, so the averments of trust went uncontroverted. Applying the Supreme Court's elements of customary trust in Isack M'inanga Kiebia, the court found the land was family/ancestral land, the claimants were family members in occupation with homes thereon, and the claim was directed at the registered proprietor who was a family member. The wife's possession gave her an overriding interest under section 30(g) of the Registered Land Act.

02

Whether the sale by the 1st defendant to the 2nd defendant was lawful

Holding

No; it was in breach of trust and void, and the absence of the trust from the register did not save it

Reasoning

A trustee cannot dispose of trust property without beneficiaries' consent. The 2nd defendant knew the family lived on the land, visited the property and saw the children in occupation, yet did not make inquiry; adequate due diligence would have revealed the ancestral character of the land. The sale was therefore a nullity notwithstanding indefeasibility of the registered title.

p. 15
03

Whether the subsequent subdivision, consolidation and transfers were lawful and whether the 4th and 5th defendants hold valid titles

Holding

No; all derivative titles were nullities, being founded on a void title and effected in disobedience of court orders and the lis pendens doctrine

Reasoning

Anything founded on a nullity is itself a nullity (Macfoy). The subdivision and transfers were done while injunction and inhibition orders were in force, for which the 2nd defendant was convicted of contempt. The 4th defendant's director knew of the suit and the plaintiffs' occupation, defeating the bona fide purchaser claim; the 5th defendant did not inquire into the occupation of houses on the land. Lis pendens binds purchasers of property in litigation.

p. 16
04

Whether the plaintiffs were entitled to have their beneficial shares ascertained and transferred during the 1st defendant's lifetime

Holding

No; under Kikuyu customary law the beneficiaries cannot compel distribution of ancestral land during the trustee's lifetime

Reasoning

The court distinguished between enforcing the trust (which it did by voiding the sale) and compelling partition. It found no evidence of a Kikuyu custom entitling a wife or children to compel a father to share ancestral land during his lifetime; succession, not inter vivos distribution, is the customary mode of transmission absent voluntary transfer.

p. 19

Legal principles established

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  • Registration of a proprietor under the Registered Land Act does not relieve him of any duty or obligation as trustee, per the proviso to section 28
  • Absence of a reference to a trust in the register or instrument of acquisition does not affect the enforceability of a customary trust
  • An act done in wilful disobedience of a court order is illegal and invalid and cannot effect any change in the rights and liabilities of others
  • A bona fide purchaser defence cannot avail where the root title is void, nor defeat the doctrine of lis pendens

Court orders

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  1. 1.Declaration that the 1st defendant held Title No. Kiambaa/Waguthu/1207 in trust for himself and the plaintiffs
  2. 2.Declaration that the transfer of the suit property by the 1st defendant to the 2nd defendant was in breach of trust and illegal, null and void
  3. 3.Declaration that the title acquired by the 2nd defendant was illegal, null and void
  4. 4.Declaration that the subdivision giving rise to Titles Nos. Kiambaa/Waguthu/3429, 3430, 3431 and 3432 was illegal, null and void
  5. 5.Declaration that the amalgamation giving rise to Title No. Kiambaa/Waguthu/3455 was illegal, null and void
  6. 6.Declaration that the transfers of Title No. Kiambaa/Waguthu/3432 to the 3rd and 5th defendants and of Title No. Kiambaa/Waguthu/3455 to the 4th defendant were illegal, null and void
  7. 7.Cancellation of entry number 14 in the register of Title No. Kiambaa/Waguthu/1207
  8. 8.Cancellation of the registrations and titles for Titles Nos. Kiambaa/Waguthu/3429, 3430, 3431 and 3432 and all entries in their registers
  9. 9.Cancellation of the amalgamation of Titles Nos. Kiambaa/Waguthu/3429, 3430 and 3431
  10. 10.Cancellation of the registration and title for Title No. Kiambaa/Waguthu/3455 and all entries in its register
  11. 11.Amendment of the Registry Index Map for Kiambaa Waguthu Registration Section to remove Titles Nos. 3429, 3430, 3431, 3432 and 3455 and restore Title No. Kiambaa/Waguthu/1207
  12. 12.Restoration of Title No. Kiambaa/Waguthu/1207 to the name of the 1st defendant
  13. 13.The Land Registrar, Kiambu to enter in the register of Title No. Kiambaa/Waguthu/1207 that the 1st defendant holds it in trust for himself, his wife and children
  14. 14.Release to the 4th defendant of the Kshs. 4,500,000/- deposited in court by the 2nd defendant
  15. 15.Plaintiffs' costs of the suit to be paid by the 2nd, 4th and 5th defendants in the ratio 50% (2nd defendant), 25% (4th defendant), 25% (5th defendant)

Authorities

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Legislation

  • Registered Land Act, Chapter 300 Laws of Kenya (now repealed)sections 27, 28 (including proviso), 30(g), 126(1), 143
  • Land Registration Act, 2012sections 24, 25, 28
  • Civil Procedure RulesOrder 1 rules 22 and 24(2)
  • Indian Transfer of Property Actsection 52 (doctrine of lis pendens)

Cases cited (22)

  • Mbui v Mukangu Mutwiri Mbui
    C.A No. 281 of 2000

    Customary trust as intergenerational equity; possession and occupation as elements

  • Isack M'Kiebia v Isaaya Theuri M'lintari & another
    [2018] eKLR

    Clarification of customary trusts under section 28 and overriding interests under section 30(g) of the Registered Land Act

  • Godfrey Githinji Kamiri v Attorney General & 4 others
    [2019] eKLR

    Due diligence expected of a purchaser; occupation should raise inquiry

  • Chemey Investment Ltd. v A.G & 2 others
    [2018] eKLR

    A purchaser who fails to take possession or inquire cannot be a bona fide purchaser

  • Arthi Highway Developers Limited v West End Butchery Limited & 6 others

    Only a foolhardy or careless investor purchases land without inquiry

  • Flemish Investments Ltd v Town Council of Mariakani
    CA No. 30 of 2015

    A bona fide purchaser must inspect the property and ascertain occupation and developments

  • Loise Kanyokora Warui v Gladys Njeri Muriuki
    [2021] eKLR

    Determination of trust so beneficiaries get their entitlement

  • Jemutai Tanui v Juliana Jeptepkeny & 5 others
    [2013] eKLR

    No law that a parent holding land holds it as trustee for children

  • Kanyi v Muthiora
    [1984] KLR 712

    Registration does not extinguish customary law rights; proviso to section 28 RLA

  • Gatimu Kinguru v Muya Gathangi
    [1976] KLR 253

    Reference to trust capacity in instrument of acquisition is permissive, not mandatory

  • John Gitiba Buruna & Another v Jackson Rioba Buruna
    Civil Appeal No. 89 of 2003

    Indefeasibility subject to trustee duties under proviso to section 28 RLA

  • Mwangi Mbothu & 9 others v Gachira Waitimu & 9 others
    [1986] eKLR

    The law never implies, the court never presumes, a trust save in absolute necessity

  • Njenga Chogera v Maria Wanjira Kimani & 2 others
    [2005] eKLR

    Proof of customary law trust by evidence of history of the land and customary law

  • Muthuita v Wanoe
    [1982] KLR 166

    Absence of trust reference in register does not affect enforceability of trust

  • Macfoy v United Africa Co. Ltd.
    (1961) 3 All E.R 1169

    An act which is void is a nullity; proceedings founded on it are incurably bad

  • Wambui v Mwangi & 3 others
    Civil Appeal 465 of 2019, [2021] KECA 144 (KLR)

    Title founded on nullity or corrupt scheme stands vitiated

  • Clarke and others v Chadburn & others
    [1985] 1 All E.R. (PC) 211

    Acts done in wilful disobedience of an injunction are illegal and invalid

  • Kenya Tea Growers Association v Francis Atwoli and 5 others
    [2012] eKLR

    Adoption of Clarke v Chadburn on consequences of disobeying court orders

  • Kawaljeet Singh Rekhi v Peter Wainaina Kamau & 2 others
    [2016] eKLR

    Doctrine of lis pendens bars dealings with property under litigation

  • Bernadatte Wangare Muriu v National Social Security Fund Board of Trustees & 2 others
    [2012] eKLR

    Citing Fredrick Joses Kinyua v G.N. Baird on lis pendens as substantive law overriding registration provisions

  • Fredrick Joses Kinyua and Peter Kiplangat Koech v G.N. Baird
    Nairobi HCCC No. 4819 of 1989 (consolidated with HCCC No. 6587 of 1991)

    Lis pendens is substantive law of general application based on public policy

  • Jasbir Singh Rai & Others v Tarlochan Singh Rai and 4 others
    [2014] eKLR

    Costs follow the event

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land and environment disputes); suit filed 21st October 2011

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, "Muthoni Kimani Ruingi & another v Francis Kimani Waruingi & 4 others", Case Analysis (2022). Environment and Land Case Civil Suit 570 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14742/eng@2022-11-10

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