Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedVoi ELC Appeal (from Voi CMC ELC No. 21 of 2019)· [2024] KEELC 5951 (KLR)

Mtingo & another v Maganga (Environment and Land Appeal 5 of 2023) (Environment and Land) [2024] KEELC 5951 (KLR)

Environment and Land Court (first appeal)
19 September 2024
3,332 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

A Kenyan court confirmed that land registered in one person's name can still be held in trust for family members under customary law.

What this practically means

#

Executive summary

#
This is a first appeal against the judgment of Hon. F. M. Nyakundi SRM delivered on 21st January 2022 in Voi CMC ELC No. 21 of 2019, in which the trial magistrate revoked the registration of parcels Werugha/2057 and 2058 in favour of the Defendants, ordered a new survey of the original parcel Werugha/633 and its subdivision into three equal portions with title deeds issued to the Plaintiff and the two Defendants individually. The Appellants, sons of the registered owner Getrude Mkacharo Malila, appealed on grounds including insufficiency of evidence, unpleaded adverse possession and fraud, and non-joinder of the registered owner. The Respondent, their cousin, relied on a customary trust, citing the Supreme Court decision in M'inanga v M'Linturi. E. K. Wabwoto J framed four issues. The court held that a customary trust existed in favour of the Respondent, as the land originally belonged to the parties' grandfather who allocated portions to his children, and the Respondent resided on the land at registration. The court agreed that the trial court erred in finding fraud, since no particulars of fraud were pleaded or proved, but held that non-joinder of the registered owner was not fatal under Order 1 Rules 9 and 10 of the Civil Procedure Rules. Finding the Respondent had discharged the evidentiary burden on a balance of probability, the court declined to interfere with the trial judgment and dismissed the appeal, directing each party to bear their own costs given the family nature of the dispute. Judgment dated 19th September 2024, delivered virtually at Voi.

Key legal issues

#
01

Existence of customary trust over the suit land

Holding

The trial court was right in finding that a customary trust existed in favour of the Respondent

Reasoning

The land originally belonged to Mwang'ombe Mwaishimba, grandfather to both parties, who allocated portions to his children including the Respondent's mother. The Respondent resided on the land when it was registered in the Appellants' mother's name. Applying the M'inanga elements of customary trust, the relationship of the parties and the nature of the family holding established a customary trust notwithstanding registration.

p. 6
02

Fraud not pleaded or particularised

Holding

The trial court erred in finding fraud without particulars pleaded, but this did not affect the outcome on trust

Reasoning

It is trite law that a party alleging fraud must specifically plead the particulars of fraud and lead evidence to prove the allegations. The court perused the Amended Plaint and found no particulars of fraud pleaded. The trial court therefore erred in making a finding of fraudulent registration, though the appeal still failed on the customary trust finding.

p. 6
03

Non-joinder of the registered owner

Holding

Non-joinder of the registered owner did not render the suit fatally defective

Reasoning

Order 1 Rules 9 and 10 of the Civil Procedure Rules provide that no suit shall be defeated by misjoinder or non-joinder of parties, and the court may deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The trial court was able to effectively discern and resolve the dispute presented by the parties before it.

p. 7

Legal principles established

#
  • On a first appeal the court must reconsider and re-evaluate the evidence and draw its own conclusions while allowing for the trial court's advantage of seeing and hearing witnesses
  • Fraud must be specifically pleaded with particulars and distinctly proved
  • No suit shall be defeated by reason of misjoinder or non-joinder of parties
  • Registered land is subject to the overriding interest of trusts including customary trusts under section 28 of the Land Registration Act

Court orders

#
  1. 1.The appeal is devoid of merit and is dismissed
  2. 2.Each party to bear own costs of appeal

Authorities

#

Legislation

  • Land Registration Actsections 24, 25, 26, 28
  • Civil Procedure Rules, 2010Order 1 Rules 9 and 10
  • Constitution of KenyaArticle 159(2)

Cases cited (10)

  • Wilson Kazungu Katana v Salim Abdalla Bakshein & Another
    [2015] eKLR
  • Mbira v Gachuhi
    [2002] 1 EALR 137
  • Kuria Kiarie v Sammy Magera
    [2018] eKLR
  • Elikana Kulola vs Mkokwa Local Government at Sumbawanga Court, Tanzania
    Land Case No. 8 of 2022
  • Isaak Theuri Kieba M'inanga v Isaya Theuri M'Linturi & Another
    [2018] eKLR
  • China Zhingxing Construction Company Ltd v Ann Akuru Sophia
    [2020] eKLR
  • Peters v Sunday Post Limited
    [1958] EA 424
  • Watt v Thomas
    [1947] A.C. 484
  • Vijay Morjaria v Nansign Madhusihn Darbar & Another
    [2000] eKLR
  • Kiarie v. Kinuthia
On appeal from
Chief Magistrate's Court, Voi
Voi CMC ELC No. 21 of 2019
Jurisdiction invoked
First appeal from the Chief Magistrate's Court (Environment and Land jurisdiction), rehearing jurisdiction on facts and law

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mtingo & another v Maganga (Environment and Land Appeal 5 of 2023)  (Environment and Land) [2024] KEELC 5951 (KLR)", Case Analysis (2024). Voi ELC Appeal (from Voi CMC ELC No. 21 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5951/eng@2024-09-19

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