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Court of AppealAllowedCourt of Appeal at Nyeri Civil Appeal (judgment dated 10th December 2013; suit property dispute arising from Civil Suit No. 341 of 1996)

Maina v Maina (Civil Appeal 239 of 2009) [2013] KECA 94 (KLR)

Court of Appeal of Kenya
10 December 2013
AVAlnashir VisramMartha Karambu KoomeMartha KoomeOTOtieno-Odek
3,402 words in judgment
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The bottom line

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The Court of Appeal ruled that even a first-registered land title can be held on trust, and a brother in long occupation won half the family land.

What this practically means

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Executive summary

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The appellant, brother of the respondent and both sons of the late Maina s/o Gathiha, sued in the High Court at Nyeri (Civil Suit No. 341 of 1996) claiming that the respondent held Ruguru/Kiamariga/711 (3.2 acres), registered in the respondent's name at demarcation in 1959, on trust in equal shares, alleging their father settled both of them on the land in 1962. Kasango, J. dismissed the suit, holding the appellant had failed to discharge the burden of proving the trust. The Court of Appeal at Nyeri (Visram, Koome and Otieno-Odek, JJ.A) identified two issues: whether the respondent held the title in trust, and whether the judge erred on the burden of proof. As a first appeal, the Court re-evaluated the evidence. It rejected the respondent's indefeasibility argument, holding that sections 27, 28 and 30 of the repealed Registered Land Act provide exceptions allowing a trust to be declared even on a first registration. The appellant's occupation since 1962 was held to be an overriding interest under section 30(f), the alleged licence being unproved. The Court held that although the legal burden of proving the trust lay on the appellant, once he testified the land belonged to their father, the evidential burden shifted to the respondent to prove how he acquired title; he did not discharge it. A trust was found to exist. The appeal was allowed, the High Court judgment of 15th December 2008 set aside, judgment entered for the appellant as prayed in the plaint, with the respondent to bear the costs of the appeal.

Questions the Court framed

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

  1. 1.Is the respondent holding the title to Land Reference Ruguru/Kiamariga/711 as a trustee for himself and the appellant?
  2. 2.Did the learned Judge err in finding that the appellant had not discharged the burden to prove that a trust existed in relation to Land Reference Ruguru/Kiamariga/711?

Key legal issues

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01

Whether a trust can be declared over land held under a first registration under the Registered Land Act

Holding

Yes. Indefeasibility under the RLA is subject to express exceptions in sections 27, 28 and 30; a trust may be declared even on a first registration.

Reasoning

The respondent argued that as first registrant his title was absolute and indefeasible, invoking section 143 RLA. The Court held this argument fallacious: sections 27, 28 and 30 carve out exceptions, section 28 lists overriding liabilities and section 30 overriding interests including possession rights. The trial judge had herself correctly noted that a trust claim lies under section 28 even on first registration.

p. 4
02

Whether the appellant's long occupation constituted an overriding interest or a mere licence

Holding

The occupation since 1962 was an overriding interest under section 30(f), not a licence; the respondent failed to prove any licence.

Reasoning

There was no evidence of when or how any licence was granted or that the respondent gave permission in 1962. A presumption of continuance and uninterrupted occupation on the same terms applied, which is rebuttable but the respondent bore the burden of rebutting it and did not discharge it.

p. 5
03

Allocation of the burden of proof between the claimant of a trust and the registered proprietor

Holding

The legal burden of proving the trust lay on the appellant, but once he testified the land belonged to their father who settled both of them on it, the evidential burden shifted to the respondent to dislodge that evidence and prove how he acquired title.

Reasoning

Relying on sections 112 and 116 of the Evidence Act, the Court held that how the respondent acquired title was a fact especially within his knowledge, and since the appellant was in possession, the respondent had to prove the appellant had no interest. The respondent led no evidence to rebut the appellant's testimony, so a trust was found to exist.

p. 6
04

Whether the trial judge erred in finding the trust not proved

Holding

Yes; she failed to give sufficient consideration to the evidence that the father settled all five sons on the two parcels and failed to appreciate the shifted evidential burden.

Reasoning

On re-evaluation as a first appeal, the Court found both brothers were settled on the suit property by their father in 1962 and had occupied it openly and without interruption in claim of right; the respondent did not controvert this evidence. Equity favoured the plaintiff, and the judge's conclusion that the burden was not discharged was erroneous in law and fact.

p. 5

Legal principles established

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  • A claim in trust can be brought even on first registration; indefeasibility of a first registration under the RLA is subject to the exceptions in sections 27, 28 and 30.
  • Where a registered proprietor's root of title is under challenge, the title document alone is insufficient; the proprietor must prove the legality of the acquisition and that it is free from encumbrances, including overriding interests not noted on the register.
  • Once a party testifies that property belonged to a third party (the deceased father), the evidential burden shifts to the registered proprietor to dislodge that evidence and explain how he acquired title.
  • Actual occupation and possession of registered land is an overriding interest protected under section 30(f) of the RLA even where not noted on the register.

Court orders

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  1. 1.The judgment and decree of the High Court issued pursuant to the judgment dated 15th December 2008 in Civil Suit No. 341 of 1996 is set aside.
  2. 2.Judgment is substituted in its place to be entered for the plaintiff against the defendant as prayed for in the plaint dated 3rd December 1996 (declaration of trust, sub-division and transfer of one half or 1.6 acres).
  3. 3.The appeal is allowed.
  4. 4.The respondent shall bear the costs of this appeal.

The bench

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

AV
majority
Martha Karambu Koome
Martha KoomeJA
Currently serving
majority
OT
majority
On appeal from
High Court of Kenya at Nyeri
Civil Suit No. 341 of 1996
Jurisdiction invoked
First appellate jurisdiction under the Appellate Jurisdiction Act (Sections 3A and 3B cited as to the overriding objective)

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.

The upshot is that we hereby set aside the Judgment and decree of the High Court issued pursuant to the Judgment dated 15th December, 2008, in Civil Suit No. 341of 1996. We hereby substitute in its place judgment to be entered for the plaintifi against the defendant as prayed for in the plaint dated 3rd December, 1996. This appeal has merit and is allowed. The respondent shall bear the costs of this appeal.
p. 6Final orders and disposition
when a registered proprietor’s root of title is under challenge, it is not suficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title
p. 6Burden on registered proprietor whose title is challenged
there is nothing in the Registered Land Act which precludes the declaration of a trust in respect of registered land even if it is a first registration
p. 4Trusts over first-registration titles under the RLA
The actual occupation and possession by the appellant is recognized and protected under Section 30 (f) of the Registered Land Act as an overriding interest. We find that the appellant has an overriding interest over the suit property.
p. 5Overriding interest of a person in actual occupation
the moment the appellant testified that the suit property belonged to their deceased father, the evidential burden shifted to the respondent to dislodge this item of evidence
p. 6Shifting of evidential burden of proof

Issues in the judgment

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minor

The copy of the judgment does not bear an appeal case number in the coram or heading, only the certification of the Deputy Registrar; the appeal number cannot be stated from this judgment alone.

minor

The case title of the parties is not stated in this copy; the parties are referred to throughout only as 'the appellant' and 'the respondent'.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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

Cite this brief

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Cite this brief

Caselaw, "Maina v Maina (Civil Appeal 239 of 2009) [2013] KECA 94 (KLR)", Case Analysis (2013). Court of Appeal at Nyeri Civil Appeal (judgment dated 10th December 2013; suit property dispute arising from Civil Suit No. 341 of 1996). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/94/eng@2013-12-10

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