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ELCPartially AllowedNot stated in judgment (plaint dated 14th July 2014)· [2014] KEELC 11 (KLR)

Richard Nyamwembe Auka & 2 others v Josephine Motaroki & 2 others [2014] KEELC 11 (KLR)

Environment and Land Court (High Court of Kenya), Kisii
19 December 2014
SOS. Okong'o
2,553 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a ruling on the plaintiffs' Notice of Motion dated 14th July 2014 seeking a temporary injunction in a suit over LR No. West Mugirango/Siamani/6172 and its subdivisions, Plot Nos. 7443 and 7444. The plaintiffs alleged that the 3rd plaintiff, a polygamist, transferred Plot No. 6172 to the 1st defendant (his second wife) to hold in customary trust for her children, including the 1st and 2nd plaintiffs, and that her sub-division of the plot and sale of Plot No. 7444 to the 2nd defendant for Kshs 900,000 breached that trust and were procured by fraud. The 1st defendant admitted the transfer but said she sold the portion to pay debts incurred educating her children; the 2nd defendant claimed he was a bona fide purchaser for value without notice. Applying the Giella v Cassman Brown principles, the court held that customary trust is a matter of fact that must be pleaded and proved, and that under sections 25(2) and 28(b) of the Land Registration Act it is an overriding interest that binds registered proprietors and may defeat a purchaser's reliance on the absence of registration. On the material, the court found a prima facie trust and breach. However, because the 1st defendant's matrimonial home sits on Plot No. 7443 and the 2nd defendant has developed Plot No. 7444, the court declined the full injunction sought and instead restrained further alienation, charging or development of the two parcels pending trial, with costs in the cause.

Key legal issues

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01

Prima facie existence of customary trust

Holding

The court found on the material that the 1st defendant held Plot No. 6172 in customary trust for herself and her children, and had no capacity to alienate in breach of that trust

Reasoning

The court applied section 25(2) and 28(b) of the Land Registration Act: registration does not relieve a trustee of duties, and customary trust is an overriding interest. Drawing on Kuria customary law precedent, and noting the 1st defendant did not deny the transfer arose from her status as wife, the court found a prima facie trust in favour of the children, making the sale of Plot No. 7444 prima facie a breach of trust.

p. 4
02

Effect of the alleged trust against a purchaser for value

Holding

The 2nd defendant cannot rely on the absence of a registered encumbrance to defeat the plaintiffs' unregistered customary trust interest

Reasoning

Because customary trust is an overriding interest under section 28(b) of the Land Registration Act, it may affect registered land though unregistered. Hence a purchaser takes subject to it, and the 2nd defendant's argument that the plaintiffs' unregistered interest cannot defeat his title fails at this interlocutory stage.

p. 3
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Terms of the interlocutory injunction

Holding

A limited injunction issued: against alienation and charging of Plot No. 7443 by the 1st defendant, and against alienation, charging or development of Plot No. 7444 by the 2nd defendant, but not the full injunction sought

Reasoning

Irreparable loss would follow alienation of the subdivided parcels, satisfying the Giella conditions. However, the 1st defendant resides on Plot No. 7443 and the 2nd defendant is in possession of Plot No. 7444 with developments, so the court tailored the injunction to restraint on further dealings rather than barring entry and possession.

p. 4

Legal principles established

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  • Customary trust is a matter of fact that must be pleaded, particularised and proved, and as an overriding interest under the Land Registration Act it binds registered proprietors notwithstanding registration
  • Registration as proprietor does not relieve a trustee from duties as trustee, and customary trust as an overriding interest may bind a subsequent purchaser
  • Applications for temporary injunction are determined on the Giella v Cassman Brown principles: prima facie case, irreparable harm, and balance of convenience

Court orders

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  1. 1.Injunction restraining the 1st defendant by herself or through her agents, servants or employees from leasing, selling, transferring, or charging LR No. West Mugirango/Siamani/7443 or any portion thereof pending the hearing and determination of this suit or further orders
  2. 2.Injunction restraining the 2nd defendant by himself or through his agents, servants or employees from leasing, selling, transferring, charging or developing LR No. West Mugirango/Siamani/7444 pending the hearing and determination of the suit or further orders
  3. 3.Costs of the application to be in the cause
Jurisdiction invoked
Original civil jurisdiction of the High Court in land disputes; interim relief under Civil Procedure Rules (Order 2, rule 10 and injunction principles in Giella v Cassman Brown)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Richard Nyamwembe Auka & 2 others v Josephine Motaroki & 2 others [2014] KEELC 11 (KLR)", Case Analysis (2014). Not stated in judgment (plaint dated 14th July 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/11/eng@2014-12-19

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