Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedNot stated in the judgment

Geoffrey Mugambi & 2others v David K. M'Mugambi & 3others [1992] KECA 59 (KLR)

Court of Appeal of Kenya
16 October 1992
2,214 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal upheld a family land ruling, confirming judges can apply well-known customary law without proof and rejecting a hidden, unprobated will.

What this practically means

#

Executive summary

#
This was a second appeal to the Court of Appeal at Nyeri arising from a family land dispute in Meru. Mugambi Imanyara, a polygamous Meru man, subdivided and transferred land to some of his sons, making no provision for four others, who sued claiming the subdivisions were made in disregard of trusts in their favour. At trial, the defendants produced a will, drawn by their own advocate, only after the plaintiffs had closed their case. The High Court disregarded the will, applied Meru customary law of land distribution without evidence being called to prove the custom, and declared trusts in favour of the four sons over parcels 1624, 1625 and 1627. On appeal, Kwach JA held that under sections 59 and 60(1)(a) of the Evidence Act a notorious and documented custom may be judicially noticed without proof; since Meru customary law was documented in Cotran's Restatement of African Law, the trial judge was entitled to apply it. The Court applied Kimani v Gikanga and Marube v Nyamuro, declined to interfere with findings of fact fully supported by evidence, and held that the unprobated will, concealed until late in the trial and clearly aimed at disinheriting the respondents, was properly disregarded and its contents inadmissible. Muli JA and Gicheru JA agreed. The appeal was dismissed with costs to the respondents.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial judge was entitled to rely on and apply Meru customary law of land distribution where no evidence of that custom had been adduced by the parties
  2. 2.Whether the trial judge erred in his findings of fact and law in distributing the deceased's land
  3. 3.Whether the trial judge was right to disregard the deceased's will produced at the close of the respondents' case

Key legal issues

#
01

Judicial notice of Meru customary law of land distribution

Holding

The trial judge was entitled to take judicial notice of the Meru custom of equal distribution among sons and distribution by houses in polygamous families, as it was notorious and documented in Cotran's Restatement of African Law (Vol 2), notwithstanding the absence of evidence.

Reasoning

Section 59 of the Evidence Act provides that no fact of which the court takes judicial notice need be proved, and section 60(1)(a) includes unwritten laws having the force of law among facts judicially noticed. The Court distinguished Kimani v Gikanga, which required proof only where customary law is neither notorious nor documented. The trial judge understood and correctly applied the custom in an attempt to avoid rendering the respondents landless.

p. 3
02

Disregard of the deceased's will

Holding

The trial judge properly disregarded the will, which was concealed until long after the respondents closed their case and was drawn by the advocate acting for the beneficiaries; its main object was to disinherit the respondents.

Reasoning

The will dated 20 January 1983 was known to Kagwabii and Mr Mbaya, yet was only produced on 5 June 1989, after the respondents closed their case. Kagwabii gave no explanation for failing to read the will after death or apply for probate. The judge did not declare the will invalid but disregarded it; Muli JA held the contents of the unprobated will inadmissible.

p. 4
03

Interference with findings of fact on second appeal

Holding

All the trial judge's findings of fact were fully supported by the evidence and the Court declined to interfere.

Reasoning

Applying Marube v Nyamuro, the Court of Appeal will not disturb findings of fact unless they are based on no evidence, on a misapprehension of the evidence, or the judge demonstrably acted on wrong principles. Counsel for the appellants pointed to no specific instances of error, and the findings were supported by the evidence.

p. 4

Legal principles established

#
  • A court may take judicial notice of a notorious and documented customary law without evidence being called to prove it
  • Where African customary law is neither notorious nor documented, it must be established by the party intending to rely on it, by evidence or expert opinion
  • The Court of Appeal will not interfere with a trial court's finding of fact unless it is based on no evidence, on a misapprehension of the evidence, or on wrong principles
  • The contents of an unprobated will produced late in the trial are inadmissible

Court orders

#
  1. 1.This appeal be and is hereby dismissed with costs to the respondents

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Wrote the leading judgment, holding that the trial judge was entitled to take judicial notice of the notorious and documented Meru customary law of land distribution under sections 59 and 60(1)(a) of the Evidence Act even without evidence, and that the unprobated will produced late at trial was properly disregarded as an attempt to disinherit the respondents. Recommended dismissal of the appeal with costs.

in my judgment, as the custom is not only notorious but is also documented, the Judge was perfectly entitled to take judicial notice of it and it was not therefore necessary to call evidence to prove itp. 3
concurring

Agreed with Kwach JA's conclusions and orders, adding that the contents of the unprobated will were inadmissible and properly rejected.

The contents of the unprobated will were inadmissible and properly rejected by the learned trial Judge.p. 4
concurring

Agreed with Kwach JA's judgment and orders and delivered the court's order dismissing the appeal with costs.

As Muli JA also agrees, it is ordered that this appeal be and is hereby dismissed with costs to the respondents.p. 4
On appeal from
High Court of Kenya
Jurisdiction invoked
First appeal to the Court of Appeal under the Judicature Act framework; the judgment does not invoke a specific constitutional or appellate provision.

Relief refused

#

The appellants' appeal against the declaration of trusts in favour of the respondents over parcels 1624, 1625 and 1627

The custom was notorious and documented and the judge was entitled to take judicial notice of it; the will was properly disregarded as an attempt to disinherit the respondents

p. 4

Costs

Appeal dismissed with costs to the respondents

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.

in my judgment, as the custom is not only notorious but is also documented, the Judge was perfectly entitled to take judicial notice of it and it was not therefore necessary to call evidence to prove it
p. 3Judicial notice of customary law
I do not think that under Meru customs, a man is entitled to render some of his children landless by giving the whole of his land or a large chunk of it to his few selected children leaving the rest landless.
p. 3Meru customary law on land distribution
The contents of the unprobated will were inadmissible and properly rejected by the learned trial Judge.
p. 4Unprobated wills
As Muli JA also agrees, it is ordered that this appeal be and is hereby dismissed with costs to the respondents.
p. 4Final orders

Issues in the judgment

#
minor

The judgment spells the same land parcel inconsistently as 'Abothuguchi/Kithirune/97' and 'Abothuguci/Kithirune/1363' in the quotation from the trial judge

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Geoffrey Mugambi & 2others v David K. M'Mugambi & 3others [1992] KECA 59 (KLR)", Case Analysis (1992). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1992/59/eng@1992-10-16

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