Mbogori v Nkanata & 3 others
The bottom line
#A Kenyan court cancelled a land purchase because the buyer should have known the land was ancestral family land held in trust.
What this practically means
#Executive summary
#Key legal issues
#Whether a customary trust over the suit land was proved
Yes - the evidence, including testimony of Muriithi Nkanata that he transferred the land to the 4th respondent to hold in trust, established a customary trust in favour of the 1st, 2nd and 3rd respondents
The green card showed the land was a subdivision of the original parcel belonging to the 4th respondent's father. Muriithi Nkanata testified he transferred the land to his brother to hold in trust. The 4th respondent did not testify to rebut this, so the evidence stood unchallenged. All witnesses confirmed the land was family land sold without family consent.
Whether the appellant was an innocent purchaser for value without notice
No - as a neighbour, the appellant ought to have known the land was ancestral land and should have involved the other family members before purchasing
The court found the appellant was a neighbour to the respondents and ought to have known the land was ancestral family land. Due diligence extended beyond the register to unregistered overriding interests such as trusts. The transfer in breach of trust was therefore properly nullified by the trial court.
Whether lack of occupation by the beneficiaries defeats a customary trust claim
No - following the Supreme Court in Isack M'inanga Kiebia, physical possession and occupation is not necessary to prove a trust in land
Relying on the Supreme Court's decision, the court held that a customary trust falls under the proviso to Section 28 of the Registered Land Act, while rights of persons in possession fall under Section 30(g). The respondents' lack of occupation did not preclude enquiry into the circumstances of registration.
Legal principles established
#- The onus lies on a party relying on the existence of a trust to prove it through evidence; the law never implies or the court never presumes a trust save in case of absolute necessity
- A customary trust falls within the proviso to Section 28 of the Registered Land Act and need not be noted on the register to be enforceable
- An appellate court will not interfere with a finding of fact by the trial court unless it is based on no evidence, misrepresentation of the evidence, or failure to take account of material circumstances
Court orders
#- 1.The appeal is dismissed with costs to the 1st, 2nd and 3rd respondents
- On appeal from
- ELC Court at Githongo (Senior Principal Magistrate's Court)
- ELC Case No 42 of 2017
- Jurisdiction invoked
- First appeal to the Environment and Land Court under the Environment and Land Court Act against the judgment of the magistrates' court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbogori v Nkanata & 3 others", Case Analysis (2022). Environment and Land Appeal E055 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15242/eng@2022-12-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.