Kabiri v Githinji & another (Environment and Land Appeal E09 of 2021) [2024] KEELC 637 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that proved customary trust on family land overrides registered ownership, and the appellant won his one-third share with costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.As per the available evidence, is there proof of Customary trust or not?
- 2.Whether the Appeal is merited?
- 3.Who should pay costs of the appeal?
Key legal issues
#Whether the Appellant proved existence of a Kikuyu customary trust over Maragua Ridge/18 and its subdivisions
Yes - the land was family/ancestral land of Mary Njoki Kabiri's family, registered in the name of the eldest son Githinji Kabiri as Muramati to hold in trust for the family including the Appellant, who was in actual possession and occupation since 1963
The court took judicial notice that in 1962 women did not hold ID cards and could not be registered as land owners, and believed the land was allocated to the Appellant's landless mother. Under Kikuyu Customary law the eldest son holds land as Muramati for the family. The Appellant lived, married and raised his family on the land, and farm proceeds repaid the Settlement Fund Trustees loan. All the Isaack Kieba tests were satisfied; the trust subsisted as an overriding interest under section 28(b) of the Land Registration Act and was not extinguished by the Respondents' registration after transmission in 1995.
Whether the claim was one of customary trust or inheritance/succession
The claim was for determination of customary trust, not a succession or inheritance claim, and the trial court erred in treating it as an attempt to inherit from a brother under Kikuyu Customary law
The trial court placed great weight on the succession proceedings and on the evidence that under Kikuyu Customary law a brother cannot inherit from a brother. The appellate court held this was an error: a claim for customary trust cannot be litigated within a succession cause and must be brought as a substantive suit; the probate court lacks the mandate to determine ownership of land and declaration of trusts.
Whether temporary structures negate possession for purposes of customary trust
No - the fact that rural homes are built of poles and mud rather than bricks and cement does not mean the holder occupies the land only temporarily
The Respondents submitted that the Appellant's structures were temporary and therefore conferred no rights. The court rejected this, reasoning that in rural settings most houses are made of poles and mud; such buildings are the homes of rural people and their non-permanent nature does not make the occupation temporary. Possession and actual occupation remain key elements in establishing customary trust.
Legal principles established
#- Customary trust is an overriding interest on registered land which, if proved, defeats the absolute and indefeasible right of a registered proprietor
- A trust is never implied by the court; it must be proved by evidence by the party asserting it
- A first appellate court must re-evaluate and re-assess the evidence and draw its own conclusions
- Registration of land in a proprietor's name does not extinguish rights under Kikuyu Customary law
- A claim for declaration of trust over land cannot be resolved in a succession cause; it must be filed as a substantive suit before the Environment and Land Court
Court orders
#- 1.The appeal is allowed as contained in the Memorandum of Appeal dated 7th June 2021
- 2.The judgment of the trial court dated 13th May 2021 is set aside and substituted with the Appellant's claim as set out in the Plaint dated 16th September 2010
- 3.The Appellant is awarded costs of the appeal and costs at the lower court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- SPM's Court, Kigumo
- Kigumo MELC No. 20 of 2018
- Jurisdiction invoked
- Section 65(1) of the Civil Procedure Act (first appeal from the trial court)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, this court allows the Appeal as contained in the Memo of Appeal dated 7th June 2021, by setting aside the Judgement of the trial Court dated 13th May 2021, and substituting it with the Appellant's claim as set out in the Plaint dated 16th September, 2010, plus costs of this appeal, and costs at the lower court. The Appeal is allowed as above.
Having analysed the available evidence, this Court as an Appellate Court, finds and holds that there was indeed evidence of existence of Customary trust, and that the intention of the parties herein was very clear that Githinji Kabiri(deceased), was to hold the suit land in trust for his brother; the Appellant herein.
It is trite that Customary trust is an overriding interest which subsists on the land and can defeat a proprietor's absolute and indefeasible right over his land, where such overriding interests attach.
Customary trust is never implied and the Court cannot imply or infer Customary trust. The trust has to be proved by way of evidence.
It is evident that Customary trust is an encumbrance on the land, and these are non–registrable rights which run with land. They are overriding and subsist on the land
Issues in the judgment
#The judgment contains an apparently contradictory passage in which the court states it has no jurisdiction over the trust claim immediately after holding the customary trust was proved and while allowing the appeal
The suit property is inconsistently described in the pleading history - the Plaint refers to LR Maragua Ridge/559 and 560 while the parties' narrative describes the original parcel Maragua Ridge/18
The citation of Isaack Kieba M'Inanga vs Isaaya M'Lintari is inconsistent with the Respondents' citation of the same case as Isaack Kieba vs Isaaya Theuri
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kabiri v Githinji & another (Environment and Land Appeal E09 of 2021) [2024] KEELC 637 (KLR)", Case Analysis (2024). Kigumo ELC Appeal No. 20 of 2018 (formerly Nyeri ELC No. 413 of 2014, formerly Murang'a ELC No. 36 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/637/eng@2024-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.