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ELCAllowedEnvironment & Land Case E010 of 2021· [2023] KEELC 17250 (KLR)

Mary Wanjiru Mwangi (Suing on her own Behalf and on Behalf of Joseph Mwangi Wainaina, Deceased) v Samuel Wainaina Kamau & 2 others

Environment and Land Court of Kenya
4 May 2023
6,758 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that land registered in one person's name can still belong partly to family members under customary trust, awarding the widow 3.26 acres.

What this practically means

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Executive summary

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In this Environment and Land Court suit at Thika, the plaintiff, widow and legal administrator of Joseph Mwangi Wainaina, sought a declaration that a customary trust existed over land parcel Kiganjo/Gahcika/805, registered in the name of Francis Kamau Wainaina (her brother-in-law), entitling her to 1.35 Ha (3.26 acres) on behalf of her deceased husband's family. The 1st and 2nd defendants, son and widow of Francis, denied any trust, asserting Francis owned the land absolutely and had generously allocated the plaintiff 2 acres; they also pleaded res judicata based on prior Land Dispute Tribunal proceedings whose award was quashed by the High Court for want of jurisdiction. The Land Registrar confirmed the register opened in 1958 in Francis's name with no subdivision, subject to the plaintiff's 2002 caution. The sole issue was whether the plaintiff proved a customary trust. Applying section 28 of the Land Registration Act, the repealed RLA provisions, and the Supreme Court's criteria in the M'Inanga case, the court found credible, corroborated evidence of a 1972/73 subdivision into two equal portions sealed by a Kikuyu ceremony (slaughter of a Ngoima goat) and planting of Mikungugu boundary trees, witnessed by elders, a government surveyor and an agricultural officer. Francis's own affidavit admitted he held the land in trust. The defendants, minors at the material time, failed to dislodge this evidence. The court held registration did not extinguish the customary trust, an overriding interest. Judgment was entered for the plaintiff: a declaration of trust over 3.26 acres, an order for subdivision and transfer of that portion to her in trust for herself and Joseph's children, subdivision to follow ground occupation, default execution by the Deputy Registrar, and costs in her favour.

Key legal issues

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01

Whether the Plaintiff proved a customary trust over the suit land entitling her to 3.26 acres

Holding

Yes. Applying the M'Inanga criteria, the court found the land was family land, the claimant belongs to the family, the relationship is not remote, she could have been a beneficiary but for intervening circumstances, and the claim is directed against a registered proprietor who is a family member.

Reasoning

The court found credible, corroborated evidence of a 1972/73 subdivision of the family land into two equal portions between the brothers, sealed by a Kikuyu ceremony (slaughter of a Ngoima goat) and planting of Mikungugu boundary trees, witnessed by elders, a government surveyor and an agricultural officer. Francis himself admitted in a supporting affidavit that he held the land in trust. The defendants, who were minors at the time, failed to dislodge this evidence. Registration of Francis as proprietor did not extinguish the customary trust, which is an overriding interest under section 28 of the Land Registration Act.

02

Whether registration of the land in the name of Francis extinguished the customary trust

Holding

No. Customary trust is an overriding interest under section 28 of the Land Registration Act and need not be noted on the register.

Reasoning

Relying on section 28(b) of the Land Registration Act, the mirrored provisions of the repealed Registered Land Act (sections 27, 28 and 30), and Kanyi v Muthiora, the court held that registration does not extinguish rights under Kikuyu customary law nor relieve the registered proprietor of trustee obligations.

p. 9

Legal principles established

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  • A customary trust need not be registered on the title; it is an overriding interest that subsists on and binds the land notwithstanding registration of a proprietor.
  • The legal burden to prove the existence of a customary trust rests with the one asserting the right, and it is proved by leading evidence on the history (root) of the suit property and the relevant customary law.
  • The elements from the M'Inanga decision for qualifying a claimant under a customary trust were applied and satisfied on the evidence.

Court orders

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  1. 1.A declaration that a customary trust in respect of land parcel Number Kiganjo/Gahcika/805 in favour of the Plaintiff has been proven and she is entitled to 1.35 Ha (3.26 acres) out of the suit land
  2. 2.An order for determination of the trust and that the suit land be subdivided and the portion measuring 3.26 acres be transferred to the applicant to hold in trust for herself and the children of Joseph Mwangi Wainaina
  3. 3.That the subdivision to follow as much as is practicable the occupation of the parties on the ground
  4. 4.In default, the Deputy Registrar of the Court is mandated to execute all documents to effectuate the orders
  5. 5.Costs in favour of the Plaintiff

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 60(1)(a)
  • Land Registration ActSections 24, 25, 28 (including 28(b))
  • Registered Land Act (Cap 300) (repealed)Sections 27, 28, 30
  • Evidence ActSections 3(2), 3(3), 107, 108, 109

Cases cited (12)

  • Mbui Mukangu vs Gerald Mutwiri Mbui
    C.A No. 281 of 2000

    Customary trust as a concept of intergenerational equity where land is held by one generation for the benefit of succeeding generations

  • Peter Gitonga Vs Francis Maingi M'Ikiara
    Meru HCCC No. 146 of 2000

    A trust can be created under customary law; circumstances surrounding registration must be examined to determine the purpose of registration

  • Issack Kieba M'Inanga Vs Isaaya Theuri M'Linturi & Anor
    Supreme Court of Kenya No. 10 of 2015

    Elements that qualify a claimant as beneficiary of a customary trust; each case determined on its own merits and quality of evidence

  • Kanyi Vs Muthiora
    1984 KLR 712 CA

    Registration under the Land Registration Act did not extinguish rights under Kikuyu customary law nor relieve the proprietor of trustee obligations

  • Njenga Chogera –Vs- Maria Wanjira Kimani & 2 Others
    [2005] eKLR

    Customary law trust is proved by leading evidence on the history (root) of the suit property and the relevant customary law

  • Muthuita –Vs- Muthuita
    [1982 – 88] 1 KLR 42

    Quoted with approval in Njenga Chogera on proof of customary trust

  • Jason Gitimu Wangara Vs Martin Munene Wangara & Others
    (2013) eKLR

    Registered proprietor holding land under Kikuyu custom in trust for family; registration does not relieve him of duty as trustee

  • Samuel Ngugi Vs Anthony Muchina Kamau & Anor
    ELC 36 OF 2020

    Legal burden to prove customary trust rests with the one who asserts (cited by defendants)

  • Isack Kieba M'nanga Vs Isaya Theuri M'Lintari & Anor
    (2018) eKLR

    Legal burden to prove customary trust rests with the one who asserts (cited by defendants)

  • Peter Nyaga Kairu Vs Esther Wanjiku Njau & 5 others
    (2019) eKLR

    Plaintiff has not discharged the burden of proof to establish a customary interest (cited by 3rd defendant)

  • Mbothu & 8 Others Vs Wairimu & 11 Others
    (1986) KLR 171

    The Court cannot infer a trust save to give effect to the intention of the parties (cited by 3rd defendant)

  • Kiarie v. Kinuthia

    What is essential is the nature of the holding of the land and intention of the parties (quoted within M'Inanga extract)

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (customary trust claim over land parcel Kiganjo/Gahcika/805)

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, "Mary Wanjiru Mwangi (Suing on her own Behalf and on Behalf of Joseph Mwangi Wainaina, Deceased) v Samuel Wainaina Kamau & 2 others", Case Analysis (2023). Environment & Land Case E010 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17250/eng@2023-05-04

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