Waniohi Mwai & 2 others v Isaac Ruriga Githae [2018] KEELC 2809 (KLR)
The bottom line
#A Kenyan court ruled that land registered in one family member's name can still belong to the whole family under customary trust.
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 1st and 3rd plaintiffs have proved a claim to the suit land by adverse possession
- 2.Whether the 2nd plaintiff, whose entry was with the defendant's consent, can claim adverse possession
- 3.Whether the defendant holds the suit land under an implied/customary trust for the plaintiffs
Key legal issues
#Adverse possession by the 1st and 3rd plaintiffs
They occupied a portion of the suit land hostile to the defendant for over thirty years without interruption, so their adverse possession claim to a portion of MUTITHI/STRIP/691 is well founded, though ultimately superseded by the trust declaration
The defendant admitted in his replying affidavit that the 1st and 3rd plaintiffs occupied a portion of parcel 691 against his wish. Whether occupation began in 1979 or 1981-1984, the twelve-year statutory period had expired before the first originating summons was filed in March 2014. There was no effective entry, legal proceedings, or admission by the plaintiffs interrupting their possession, so the claim was made out.
Adverse possession by the 2nd plaintiff
Dismissed because she entered and lived on the land with the defendant's consent, which was un-rebutted as she did not testify
The defendant deponed that he invited the 2nd plaintiff onto the land and built her a house. Since she was bed-ridden and did not testify, that evidence stood un-controverted. Possession with the owner's consent cannot be adverse, so her claim failed.
Implied/customary trust over the suit land
The defendant holds 2.40 Ha out of parcels 688, 690 and 691 in trust for the plaintiffs
The original parcel was clan land given to the family; the defendant, as eldest son, was registered to hold it for the family under Kikuyu Customary Law. The defendant offered no documentary proof of acquisition by secret ballot from the County Council. Plaintiffs have lived on the land for nearly thirty years. Registration alone cannot defeat a trust claim, trusts being overriding interests under the repealed Registered Land Act and the Land Registration Act. The defendant was also in breach of his trustee's obligation by selling part of the land.
Legal principles established
#- A claimant must prove exclusive, open possession as of right without interruption for 12 years to succeed in adverse possession
- A trust must be proved by evidence; courts never presume a trust save in cases of absolute necessity
- Registration as proprietor alone cannot defeat a claim based on trust; customary trusts are overriding interests
- Under Kikuyu Customary Law, land is usually held by the eldest son in trust for the family
Court orders
#- 1.A declaration that the defendant holds 2.40 Ha out of the land parcels No. MUTITHI/STRIP/688, 690 and 691 in trust for the plaintiffs
- 2.The Deputy Registrar to execute all relevant documents to facilitate the transfer of 2.40 Ha out of land parcels No. MUTITHI/STRIP/688, 690 and 691 to the plaintiffs
- 3.As the parties are family, each to meet their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over claims relating to land (adverse possession and trust)
Relief refused
#The 2nd plaintiff's claim to registration of 0.80 Ha by way of adverse possession
Her occupation was with the defendant's consent; a person in possession with the owner's consent cannot claim adverse possession, and she did not testify to rebut that evidence
Costs
As the parties are family, each to meet their own costs
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.
1. A declaration that the defendant holds 2.40 Ha out of the land parcels No. MUTITHI/STRIP/688, 690 and 691 in trust for the plaintiffs.
2. The Deputy Registrar do execute all relevant documents to facilitate the transfer of 2.40 Ha out of land parcels No. MUTITHI/STRIP/688, 690 and 691 to the plaintiffs.
3. As the parties are family, each to meet their own costs.
While the defendant's registration as the proprietor of the suit land is not in dispute, such registration alone cannot defeat a claim based on trust.
It is now well established that under Kikuyu Customary Law, to which the parties herein are subject, land is usually held by the eldest son in trust for the family
Issues in the judgment
#The judgment inconsistently spells the buyer's name, at one point 'JUSTUS KARUNGA MWANIKI' and elsewhere 'JUSTUS KARUGA MWANIKI', and the parcel he bought as 'MUTITHI/STRIP/689' and 'MUTITHI/STRIP/489'
The county council is variously referred to as 'KERUGOYA COUNTY COUNCIL' and 'KIRINAYGA COUNTY COUNCIL'
The judgment is dated and signed by B.N. Olao on 7th May 2018 but read and delivered by S.N Mukunya on 26th June 2018
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waniohi Mwai & 2 others v Isaac Ruriga Githae [2018] KEELC 2809 (KLR)", Case Analysis (2018). Originating Summons (further amended, filed 21st April 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2809/eng@2018-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.