Esther Nyamweru Waruhiu & another v George Kang’ethe Waruhiu [2019] KECA 874 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that family land held in customary trust can be reclaimed decades later, even if the trust is not recorded on the title.
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 property known as Githunguri/Giathieko/336 was held by the late David Wainaina Waruhiu in trust (under the Kikuyu Muramati customary tenure) for himself and the appellants
- 2.Whether the transfer of the suit property to the respondent was fraudulent and in breach of trust
- 3.Whether the appellants' claim was barred by limitation under section 7 of the Limitation of Actions Act
Key legal issues
#Whether a customary (Muramati) trust was established over the suit property
Yes. The 55-acre farm was family land subdivided into five portions registered in the names of first-born sons as trustees for their households; the appellants' beneficial interests bound the respondent who took without their consent.
Applying the Supreme Court's elements of customary trust in Isack M'Inanga Kieba, the court found the land was family/clan land before registration, the claimant appellants belong to the family, their relationship is not remote, they could have been registered but for the family decision to register first-born sons, and the claim is directed at a registered proprietor who is a family member. Samuel's uncontroverted evidence that beneficiaries received other shares directly and that the farm was held per household established the trust.
Whether the transfer to the respondent was fraudulent and whether fraud was proved
Yes. The appellants discharged their burden by uncontroverted evidence of lack of consent and knowledge; the respondent, having tendered no evidence, failed to disprove the allegations.
The trial judge had correctly stated the law on the standard of proof for fraud, but erred in application. The respondent's assertions of consent appeared only in a replying affidavit that became spent when the interim injunction application was compromised by consent, and in a defence never adopted or supported by evidence. Pleadings are not evidence. Samuel's sworn testimony therefore stood uncontroverted, shifting and leaving undischarged the burden on the respondent.
Whether the claim was time barred
No, on two grounds: the trial judge wrongly raised limitation suo motu after dismissing the respondent's preliminary objection on the point without appeal, and in any event limitation does not run against customary law trust claims.
The respondent's preliminary objection on limitation was heard and dismissed on 4th June 2008; that ruling was never appealed, and the defence subsequently filed never pleaded limitation. Citing Odd Jobs v Mubia, the court held the judge could not decide an unpleaded issue. Further, relying on Macharia Kihari v Ngigi Kihari, limitation under the Limitation of Actions Act does not apply to trusts arising under customary law.
The weight of the appellants' alleged forty years of inaction
The trial judge erred in treating the appellants' long inaction as defeating their beneficial claim; customary law imposes no time limit for asserting a land right against a muramati, and family negotiations preceded the suit.
The court found nothing in the customary law texts or case law prescribing a time limit for asserting a customary land right against a muramati. Samuel's uncontroverted evidence was that family negotiations to resolve the dispute amicably were ongoing after discovery of the transfer, and the trial judge failed to take this into account. The judge also wrongly used the experience of another household, which successfully blocked a transfer of their portion, to defeat rather than support the appellants' claim.
Legal principles established
#- On a first appeal the Court of Appeal must reconsider and evaluate the evidence afresh and draw its own conclusions, while making due allowance for not having seen or heard the witnesses.
- A claim of a customary trust over registered land may succeed notwithstanding that no beneficial interest is noted on the register, provided the trust is proved on a balance of probability.
- Limitation does not run against a claim founded on a customary law trust, whether or not the trust is noted on the register.
- Pleadings are not evidence; averments in a pleading or replying affidavit that are neither adopted nor proved by sworn evidence cannot found a decision.
- Once a plaintiff pleads and gives uncontroverted evidence of lack of knowledge and consent to a transfer, the burden shifts to the defendant to disprove those assertions; a defendant who gives no evidence fails to discharge that burden.
- A court may not base its decision on an issue, such as limitation, that was not pleaded or canvassed by the parties.
Court orders
#- 1.Appeal allowed as prayed
- 2.Judgment of the High Court (Gacheche, J) dated 20th April 2011 set aside
- 3.Substitution of the trial court's judgment with an order allowing the appellants' claim against the respondent as prayed in their plaint before the High Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- Civil Appeal No. 2 of 2008 (OS)
- Jurisdiction invoked
- Court of Appeal's appellate jurisdiction on a first appeal from the High Court (conferred by Article 164 of the Constitution); the judgment itself does not cite the provision expressly.
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 upshot of all the above reasoning is that we find merit in this appeal. It is accordingly allowed as prayed. We set aside the Judgment of the trial court dated 20th April, 2011, dismissing the appellants' claim, and substitute it with an order allowing the appellants' claim against the respondent as prayed in their plaint before the High Court.
time of limitation does not run against a customary law trust claim, whether such a trust is noted on the register or not.
failure to note a beneficial interest against the title of an absolute proprietor is not per se a bar to a claim of rights of such a beneficial claimant against an absolute proprietor save that such beneficial rights are subject to proof to the required threshold of balance of probability.
The pleadings in a suit are not normally evidence. They may become evidence if they are expressly or impliedly admitted as then the admission itself is evidence.
we find no basis for the trial Judge going out of her way to raise the issue of limitation suo motu that was not stated or canvassed and then use it against the appellants' claim. It is a glaring error on the face of the record which cannot be allowed to stand and we reverse it.
they discharged their part of the burden of proof and thus shifted that burden to the respondent to disprove those assertions, a position the respondent never discharged as he never tendered evidence in support of his defence.
Issues in the judgment
#The plaint is stated as dated 22nd May, 2018 although the litigation plainly predates the 2011 High Court judgment; the date appears to be an error (likely 2008), and the transfer date is given variously as 17th October, 1980 and 17th September, 1980.
The judgment gives inconsistent transfer dates for the suit property: 17th September, 1980 in one passage and 17th October, 1980 in others.
No express costs order appears in the operative part of the judgment; costs are subsumed only in allowing the appeal 'as prayed'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esther Nyamweru Waruhiu & another v George Kang’ethe Waruhiu [2019] KECA 874 (KLR)", Case Analysis (2019). Civil Appeal No. 168 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/874/eng@2019-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.