Mburu v Wainaina (Civil Appeal 143 of 2019) [2025] KECA 181 (KLR)
The bottom line
#The Court of Appeal confirmed that family members can claim their share of family land decades later through customary trust, even against a registered owner.
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 appellant was wrongly sued.
- 2.Whether this matter falls for the application of the doctrine of adverse possession.
- 3.Whether the claim is time-barred.
- 4.Whether the court may invoke customary trust under the provision of section 28 of the Land Registration Act in the circumstances of the case.
Key legal issues
#Whether the appellant was wrongly sued though not the registered proprietor
The appellant was properly sued as the legal representative of his deceased father's estate, which held the trust
The appellant did not dispute that he was the representative of his deceased father's estate, and it was the father who was registered as proprietor of the suit property and had himself registered over the respondent's portion. Since the deceased proprietor held the 2 acres in trust, the claim could properly be pursued against his estate through its legal representative. The ground therefore was unfounded and failed.
Whether the doctrine of adverse possession applied
Adverse possession did not apply because the respondent's entry and occupation of the suit property was permissive, having been invited by his uncle Kimindiri
The trial court had addressed the doctrine, holding that a licensee's interest denotes permission, negating adverse possession. This Court agreed, citing Samuel Miki Waweru v. Jane Njeri Richu, that a claim for adverse possession cannot succeed where possession is with the owner's permission, and that possession does not become adverse before the end of the period for which permission to occupy was given. The respondent's entry was permissive and not adverse to the owner.
Whether the claim was time-barred under the Limitation of Actions Act
The claim was not time-barred because the limitation periods in the Act do not apply to a trust arising under customary law
Section 20 of the Limitation of Actions Act exempts actions by a beneficiary under a trust in respect of fraud or to recover trust property from the trustee. Following Macharia Kihari v. Ngigi Kihari, the Court held that section 20(2) limitation does not apply to a trust coming into existence under customary law, under which family land is held in trust even for decades before a formal transfer or division is contemplated. The limitation ground accordingly failed.
Whether a customary trust under section 28 of the Land Registration Act was established
The respondent established a customary trust over 2 acres of the suit property, satisfying the elements laid down in Isack M'Inanga Kiebia v. Isaya Theuri M'Lintari
The Court found that the suit property was family land settled by the uncle Kimindiri on his three nephews; the respondent belongs to the family; the relationship was not remote; he would have been registered as owner of his 2 acres but for his age, the elder son being registered in trust for his siblings as was customary; and the claim is directed against a registered proprietor who is a family member. The respondent has been in possession for over 60 years.
Legal principles established
#- A customary trust proved to subsist on first registration is an overriding interest under section 28 of the Land Registration Act and binds the registered proprietor without being noted on the register
- The limitation periods under the Limitation of Actions Act do not apply to actions to enforce a trust arising under customary law over family land
- A claim for adverse possession cannot succeed where the claimant's possession is permissive, and possession does not become adverse before the permitted period expires
- On a first appeal, the Court of Appeal must reconsider and re-evaluate the evidence and reach its own conclusions, while making allowance for not having seen or heard the witnesses
Court orders
#- 1.Appeal dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (the judgment identifies the matter as 'This is a first appeal')
Relief refused
#Appellant's prayer for reversal of the High Court declaration of customary trust over 2 acres of the suit property
The respondent proved the customary trust under the elements in Isack M'Inanga Kiebia; the land was family land and the elder brother was registered in trust for his siblings
Appellant's ground that the claim was time-barred under the Limitation of Actions Act
Limitation under section 20(2) does not apply to a trust arising under customary law
Costs
Appeal dismissed with costs to the respondent
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.
Ultimately, we find no fault in the trial court's findings. We are inclined to dismiss the appeal with costs to the respondent.
We are inclined to dismiss the appeal with costs to the respondent.
The limitation does not apply in customary law. We reject this ground of appeal.
It is now clear that customary trusts, as well as all other trusts, are overriding interests. These trusts, being overriding interests, are not required to be noted in the register.
It is trite law that a claim for adverse possession cannot succeed if the person asserting the claim is in possession with the permission of the owner or in pursuance of an agreement for sale or lease or otherwise.
This is a first appeal. The duty of this Court, in addition to considering submissions by the appellants and the respondents, is to analyze and re-assess the evidence on record and reach an independent conclusion.
Issues in the judgment
#The judgment cites the Land Registration Act as Chapter 300, which appears to be a mis-citation of the chapter number
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.
- Nickson v Collins & 3 others (Environment and Land Case E001 of 2024) [2026] KEELC 2169 (KLR)[2026] KEELC 2169 (KLR)15 Apr 2026
Cite this brief
#Cite this brief
Caselaw, "Mburu v Wainaina (Civil Appeal 143 of 2019) [2025] KECA 181 (KLR)", Case Analysis (2025). Not stated in the judgment (Memorandum of Appeal dated 19th June 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/181/eng@2025-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.