Gatiba & another v Wanjiru & another (Sued as the administrators of the Estate of Paul Kungu Kabage)
The bottom line
#A Kenyan court confirmed that family land registered in one person's name can still belong to the whole family under customary trust, cancelling a fraudulent subdivision.
What this practically means
#Executive summary
#Key legal issues
#Whether customary trust was proved over the suit lands
Yes - the land was family land registered in the name of Kungu, the eldest son, to hold in trust for his two brothers under Kikuyu customary practice; the titles are encumbered by that trust
The land was community land demarcated to the Kabage family as a unit in 1957/58 and registered in the name of the eldest son in accordance with Agikuyu custom. The families occupied distinct portions marked by hedges, and family members were buried on their respective portions. The Defendants failed to prove their assertion that the brothers were allocated and sold separate parcels, disclosing neither the parcel numbers nor the purchasers. Possession is not required to prove customary trust.
Whether the removal of the caution and subdivision of T.98 were fraudulent
Yes - the caution was removed through misrepresentation and fraud, as Stephen Njogu, who allegedly authorised the deponent, had died in 2012
Evidence showed Stephen died in 2012 yet an affidavit sworn in 2017 claimed he had given authority to John Kimani Kungu. The Defendants did not rebut this evidence, and the removal of the caution paved the way for the fraudulent subdivision of Parcel T.98 into T.413 and T.414.
Whether hearsay evidence of the demarcation could found the trust claim
The Court agreed with the Defendants that PW1, PW2, PW3 and PW4 were minors or unborn at demarcation and their evidence of demarcation was hearsay, but found PW6 and PW7's evidence credible
PW7 was about 22 years old at demarcation and testified that land was demarcated to the family as a unit, not to the sons individually. PW6, who married into the family in 1967, gave unchallenged evidence of the families living on distinct portions separated by hedges and of burials on respective portions.
Legal principles established
#- Trusts including customary trusts are overriding interests under Section 28 of the Land Registration Act and need not be noted on the register
- Possession is not a prerequisite to establishing a customary trust
- The person asserting a customary trust bears the burden of proving it on a balance of probability
Court orders
#- 1.Declared that the Plaintiffs are entitled to customary trust rights in both parcels of land being Limuru/Ngecha/177 and Limuru/Ngecha T-98
- 2.Declared that Paul Kungu Kabage, Deceased registered both parcels of land in his names to hold in trust for his two younger brothers, Waitathu Kabage and Gatiba Kabage
- 3.Ordered the Land Registrar to cancel the illegal subdivision of Limuru/Ngecha T-98 into Limuru/Ngecha/T-413 and Limuru/Ngecha/T-414 and revert the land to Limuru/Ngecha/T-98
- 4.Ordered the Land Registrar to subdivide both parcels of land equally amongst the three families and issue titles thereof
- 5.Mesne profits disallowed
- 6.No orders as to costs
- Jurisdiction invoked
- Jurisdiction of the Environment and Land Court to determine title and trust over land, the succession court having directed the plaintiffs to file suit in the ELC Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gatiba & another v Wanjiru & another (Sued as the administrators of the Estate of Paul Kungu Kabage)", Case Analysis (2023). Environment & Land Case 66 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20179/eng@2023-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.