Naitore (Suing as the Legal Representative and Administratrix of the Estate of M’arimi M’aburi) v Muchai & another (Environment and Land Appeal 19 of 2023) [2025] KEELC 3146 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the registration of the original parcel in the 1st Respondent's name extinguished the family's trust rights
No - customary trust survives registration as an overriding interest; the appellant and PW 4's occupation rights were not extinguished
The original parcel was ancestral land of M'Arimi M'Aburi where he had his homestead. The appellant and her sister (PW 4, the 1st Respondent's wife) were in occupation, an uncontroverted fact. Sections 25 and 28 of the Land Registration Act, and the Supreme Court's decision in Isaac Keebia, confirm that registration does not defeat trusts including customary trusts.
Whether the appellant proved trust and breach of trust
Yes - the circumstances of the transaction warranted the inference of a trust, departing from the trial magistrate's contrary finding
The 1st Respondent claimed the land was a gift but produced no gift deed or transfer instrument. Gifts of land must be by registered instrument in writing to be valid. The occupation of the land by the donor's family and the 1st Respondent's conduct - procuring registration through marriage to PW 4 and then leaving her - rendered the transaction unconscionable, inviting the inference of a constructive trust.
Whether the transfer to the 1st Respondent was vitiated by fraud
Yes - the 1st Respondent gave mutually contradictory accounts (gift versus purchase of Kshs. 500,000), produced no sale agreement, and no land control board consent was shown
A party alleging fraud must plead and strictly prove it to the intermediate standard. Here the 1st Respondent approbated and reprobated - claiming both gift and purchase - with no sale agreement tendered and the purchase claim contradicting the green card. The transaction also required land control board consent under section 6 of the Land Control Act. The fraud standard was thus met.
Whether the 2nd Respondent is a bona fide purchaser for value without notice
No - the root title being fraudulently procured, section 26(1)(b) applies; due diligence would have revealed the family's occupation
Since the 1st Respondent's title was procured illegally, he cannot pass good title. Further, occupation of the land by the deceased's family would have been discoverable on due diligence, so the 2nd Respondent cannot claim to be without notice.
Legal principles established
#- Registration of a person as owner of land does not extinguish trust, including customary trust, which is an overriding interest on land under sections 25 and 28 of the Land Registration Act.
- A first appellate court may re-evaluate the evidence and depart from the trial court's findings where they are perverse or based on an error of principle.
- Fraud must be specifically pleaded and strictly proved to an intermediate standard above balance of probabilities but below beyond reasonable doubt.
- Once title is found to have been procured illegally, section 26(1)(b) of the Land Registration Act defeats any plea of bona fide purchase.
Court orders
#- 1.The Appeal is allowed
- 2.The Judgment and decree of the trial court dated and delivered on 26th July 2023 are set aside
- 3.The Appellant's claims at the foot of the further amended Plaint dated 1st April 2019 are granted
- 4.Costs of the Appeal awarded to the Appellant, to be borne by the Respondents jointly and/or severally
- 5.The Appellant shall also have costs of the suit in the subordinate court
- On appeal from
- Subordinate court (magistrates' court)
- Jurisdiction invoked
- First appellate jurisdiction under section 78 of the Civil Procedure Act, Cap. 21 Laws of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Naitore (Suing as the Legal Representative and Administratrix of the Estate of M’arimi M’aburi) v Muchai & another (Environment and Land Appeal 19 of 2023) [2025] KEELC 3146 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3146/eng@2025-04-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.