Kiarie & 2 others v Kiarie & 3 others (Environment and Land Appeal E016 & E018 of 2023 (Consolidated)) [2024] KEELC 7081 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that a land title registered in your name can still be bound by an unregistered family customary trust.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the suit land was held under customary trust
- 2.Whether Julia and the 1st and 2nd Appellants held the land absolutely
- 3.Whether the 3rd Appellant was a bonafide purchaser for value without notice of any defect
- 4.Who meets the costs
Key legal issues
#Whether the suit land was held under customary trust in favour of the Respondents
Yes. Julia admitted the land's root was the family patriarch Nene Njiu and that the share of her husband devolved to her; the devolution was encumbered with customary trust in favour of the house of Kiarie Njiu.
Applying M'inanga and Chogera, the court examined the root of the property. Julia's own replying affidavit confirmed the land was family land registered in the name of John Njoroge to hold in trust. The defendants admitted they never bought the property. The transmission to Julia carried the trust, which had not been determined, so the transfer to the 1st and 2nd Appellants was also encumbered.
Whether Julia and the 1st and 2nd Appellants held the land absolutely
No. Although registered owners, their title was subject to the overriding customary trust which need not appear on the register.
Sections 24 and 25 of the Land Registration Act confer absolute ownership, but only subject to encumbrances under Section 28, including customary trusts, and nothing relieves a proprietor of trustee obligations. Per Kanyi v Muthiora, registration does not extinguish customary rights; the trust binds the land whether or not noted on the title.
Whether the 3rd Appellant was a bona fide purchaser for value without notice
No. The defence of bona fide purchaser was unavailable to him.
The green card showed a restriction on dealings which due diligence would have revealed; the land was cultivated by the Respondents; the 3rd Appellant lived nearby and knew of the litigation; the 1st and 2nd Appellants fraudulently obtained removal of the restriction from a different court; the sale was pendente lite and thus bound by lis pendens; and no executed transfer, payment proof, stamp duty or land control board consent was produced.
Costs
Each party to bear their own costs on appeal and in the trial court given their family relationship.
Although costs follow the event, the court exercised discretion in favour of family harmony since the parties are related siblings and relatives.
Legal principles established
#- A first appellate court must re-evaluate and re-analyse the evidence and draw its own conclusions while making allowance for not having seen or heard the witnesses
- A customary trust is an overriding interest under Section 28 of the Land Registration Act that binds the land without being noted on the register
- The legal burden to prove a customary trust rests with the party asserting it, proved by leading evidence of the root of the property and the relevant customary law
- Registration of land in a proprietor's name does not extinguish rights under Kikuyu customary law nor relieve the proprietor of duties as trustee
- Due diligence in purchasing land does not start and end with a registry search; caveat emptor requires inquiry into patent and latent defects
- A disposition of property in litigation pendente lite binds the purchaser as if he had notice, whether or not he had actual notice, the doctrine of lis pendens applying through Section 3 of the Judicature Act and Section 107(1) of the Land Registration Act
Court orders
#- 1.Appeals by the 1st, 2nd and 3rd Appellants dismissed
- 2.Each party to bear their own costs on appeal and in the trial Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Principal Magistrate's Court; appellate duty under Section 78 of the Civil Procedure Act
- Consolidated with
- ELCA 18 of 2023
Relief refused
#Setting aside of the trial Court's declarations on customary trust, rectification of the register and permanent injunction
The appeal was found unmerited; the trial Court correctly found the suit land encumbered by customary trust and the 3rd Appellant failed to establish bona fide purchaser status
Costs
Parties being related, each to bear their own costs on appeal and in 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.
The appeal is unmerited. It is dismissed.
In this case I find that parties being related each to bear their own costs on appeal and in the trial Court.
The interest that devolved and was transmitted to Julia was encumbered with a customary trust and there was no evidence that the said trust has been determined.
Customary trust is a concept that is now settled by the apex Court in the land in the case of Isack Kieba M'inanga Vs. Isaaya Theuri M'Lintari & Another [2018] eKLR
Due diligence when purchasing land does not start and end with conducting a search at the land registry.
In any event any sale or disposition of land in litigation afiects the purchaser in the same manner as if he had notice of the suit.
Issues in the judgment
#The judgment describes the 1st and 2nd Appellants both as children of Julia and, in the trial court's judgment quoted at paragraph 5, as having inherited 'from his father-in-law', with inconsistent references to whether Julia or Kiarie inherited the land
At paragraph 20 the judgment states the 3rd Appellant's search showed the land was registered in the name of 'the 1st and 2nd Respondents' when the parties are the 1st and 2nd Appellants
The trial court's judgment quoted at paragraph 7 refers to an 'Interested party' in the permanent injunction though no interested party appears in the record of this appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiarie & 2 others v Kiarie & 3 others (Environment and Land Appeal E016 & E018 of 2023 (Consolidated)) [2024] KEELC 7081 (KLR)", Case Analysis (2024). ELCA 16 of 2023 (lead file, consolidated with ELCA 18 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7081/eng@2024-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.