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Court of AppealDismissedNot stated in judgment extract

Mandira v Joseph (Civil Appeal 131 of 1995) [1995] KECA 160 (KLR)

Court of Appeal of Kenya
23 November 1995
RKR.O KwachPhilip Kiptoo TunoiB.K TunoiALA.A Lakha
647 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that registering land doesn't erase a trust, but you must actually prove any customary law you rely on in court.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Kwach, Tunoi and Lakha JJA) dismissed an appeal against a High Court decision which had declared the appellant/defendant to hold half of land parcel South Kabras/Chemuche/7 in trust for the respondent/plaintiff. The parties are step-brothers, sons of one mother by different fathers. A 1957 decision of the Divisional Court at Lurambi had awarded the appellant a portion of land, delineated from that of Kwalanda Muchina, but during adjudication the appellant alone was registered as proprietor of the whole parcel under a first registration. The appellant's principal ground was that under section 143(1) of the Registered Land Act the court could not order rectification of the register in respect of a first registration. The court agreed with that reading of the section but held that it did not preclude recognition of a trust, provided the trust is established; the learned judge was therefore correct that the 1957 trust was not defeated by the registration. The appellant's further ground, that the judge failed to consider applicable customary law, was rejected on the authority of Kimani v Gikanga: a party invoking a particular African customary law must prove it unless it is of general notoriety warranting judicial notice. The appellant had called no witnesses and made no submissions on the custom at trial. The remaining grounds did not merit consideration. The appeal was dismissed with costs.

Questions the Court framed

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

  1. 1.Whether section 143(1) of the Registered Land Act bars recognition of a trust over land held under a first registration
  2. 2.Whether the learned judge erred in failing to consider the applicable African customary law invoked by the appellant

Key legal issues

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01

Whether a trust over registered land can survive a first registration notwithstanding section 143(1) of the Registered Land Act

Holding

Section 143(1) bars rectification on first registration but does not preclude recognition of an established trust; the 1957 trust was not defeated by registration.

Reasoning

The court accepted counsel's submission that section 143(1) prevents rectification of the register in the case of a first registration whether or not fraud or mistake is shown. However, it distinguished between rectification and recognition of trust: the statutory bar does not extinguish a trust, provided the trust is established. The learned judge was accordingly correct to hold that the trust created in 1957 survived the appellant's registration as proprietor of the whole of the suit land.

p. 2
02

Whether the trial judge erred in failing to consider the African customary law invoked by the appellant

Holding

The ground was misconceived because the appellant did not prove the customary law he wished to invoke, having called no witnesses and made no submissions on it at trial.

Reasoning

Applying Kimani v Gikanga, a party alleging that a particular African customary law produces a result different from ordinary law bears the burden of proving it, unless it is of such general notoriety that judicial notice may be taken under section 60 of the Evidence Act. Such law may be proved by opinion evidence under section 51 or by books or documents under section 60(2). The appellant did none of this before the learned judge, so the ground of appeal failed.

p. 2

Legal principles established

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  • Section 143(1) of the Registered Land Act, which bars rectification of the register on first registration, does not preclude recognition of a trust that is established.
  • A party alleging a particular African customary law must prove it unless it is of such general notoriety that judicial notice may be taken; once proved, courts must be guided by it.
  • A party who invokes customary law but neither calls witnesses nor makes submissions on it fails to discharge the burden of proving that law.

Court orders

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  1. 1.Appeal dismissed with costs

The bench

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

RK
majority
Philip Kiptoo Tunoi
majority
AL
majority
On appeal from
High Court of Kenya (learned judge, name not stated)
Jurisdiction invoked
First appellate jurisdiction over the High Court (not expressly stated in the judgment)

Relief refused

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All grounds of appeal relied on by the appellant

Section 143(1) does not preclude recognition of an established trust, and the appellant failed to prove the customary law he invoked

p. 2

Costs

This appeal is dismissed with costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

While this submission is correct, section 143(1), however, does not preclude the recognition of a trust provided it can be established.
p. 2Trusts over registered land notwithstanding the bar on rectification of first registration
Once proved, the Courts must be guided by it in accordance with Reg 4 of Proceedings) Regulations, 1963.
p. 2Effect of proved African customary law
This appeal is dismissed with costs.
p. 2Disposition

Issues in the judgment

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minor

Paragraph 3 refers to registration of 'the respondent' as proprietor of half the suit land, but paragraph 2 states the appellant alone was registered as proprietor of the whole portion.

minor

The judgment does not state the case number, the names of the parties, or the identity of the court and judge appealed from.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mandira v Joseph (Civil Appeal 131 of 1995) [1995] KECA 160 (KLR)", Case Analysis (1995). Not stated in judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/160/eng@1995-11-23

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