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ELCAllowedNot stated in the judgment as provided (plaint filed 15/5/2017, amended 9/11/2017)· [2021] KEELC 4684 (KLR)

Grace Wambui Muchoki & another v John Karanja Muchoki & 3 others [2021] KEELC 4684 (KLR)

Environment and Land Court
14 January 2021
5,914 words in judgment
View original judgmentRead on Kenya Law Watch case
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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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The Plaintiffs, mother and son of the second house of the late Daniel Muchoki Kingori, sued the 1st Defendant (eldest son of the same house) alleging that he held the family land, ultimately parcel LOC.6/GIKARANGU/3634, in customary trust for himself and the Plaintiffs in equal shares. They complained that he subdivided the land and sold portions to the 3rd and 4th Defendants during the pendency of earlier proceedings. The Plaintiffs sought cancellation of the resultant titles (4311, 4313, 4458, 4459), dissolution of the trust and distribution of the land, with consequential orders. The 1st Defendant denied the trust, asserting he redeemed family land from purchasers and effectively bought it from his father; the 3rd and 4th Defendants claimed to be purchasers for value without notice. The court framed three issues: proof of customary trust, cancellation of resultant titles, and costs. Applying section 28(b) of the Land Registration Act and the Supreme Court's elements in M'Inanga v M'Linturi, the court found the trust proved: the land was family land, the parties are family, and the 1st Defendant was registered as eldest son ('muramati'). His defence of purchase/redeemption collapsed when DW2 recanted and the sale agreements were held to be forgeries. The subdivision and sales offended lis pendens, and the 3rd and 4th Defendants were not bona fide purchasers, having taken no possession. The court entered judgment for the Plaintiffs: the resultant titles were declared tainted by fraud and cancelled to revert to parcel 3634 in the 1st Defendant's name as trustee; the trust was dissolved with distributions of 2 acres to each Plaintiff and 0.9 acres to the 1st Defendant; the Deputy Registrar was authorised to sign transfer documents; and costs were awarded to the Plaintiffs.

Key legal issues

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01

Whether the Plaintiffs proved a customary trust over the suit land

Holding

The court found the 1st Defendant held parcel 2895 and all subsequent subdivisions in trust for the Plaintiffs and himself in equal shares, as eldest son ('muramati') of the 2nd House.

Reasoning

Applying the M'Inanga elements, the land was family land registered in the name of the family patriarch; the claimants are mother and sons of the registered proprietor; the relationship is not remote; the claimants could not be registered due to intervening circumstances (minority, lack of ID, ill health, cost); and the claim is directed at a registered proprietor who is family. Uncontroverted evidence of the father's 1988/89 subdivision meetings supported the trust, and the 1st Defendant's claim to have purchased/redeemed the land collapsed when his witness recanted and the sale agreements were found to be forgeries.

p. 6
02

Whether the resultant titles, including those of the 3rd and 4th Defendants, should be cancelled

Holding

The titles were cancelled; customary trust binds resultant titles through successive subdivisions, and the 3rd and 4th Defendants were not bona fide purchasers as the sales occurred during pending litigation (lis pendens).

Reasoning

Customary trust as an overriding interest moves with the land notwithstanding subdivision. The subdivision and sales were carried out during the pendency of JR cause No. 9 of 2006 and LDT No. 41 of 2009, attracting the doctrine of lis pendens. The 3rd and 4th Defendants admitted they had not taken possession because family members occupied the land, showing inadequate due diligence; they could not acquire a better title than the 1st Defendant held in trust.

p. 6
03

Costs of the suit

Holding

Costs awarded to the Plaintiffs.

Reasoning

The Plaintiffs succeeded on their claim against all Defendants, and costs followed the event.

p. 7

Legal principles established

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  • Customary trust is an overriding interest under section 28(b) of the Land Registration Act which need not be registered and binds the land through subsequent subdivisions.
  • The legal burden of proving a customary trust rests on the party asserting it, per the elements set out in M'Inanga v M'Linturi.
  • A purchaser during the pendency of litigation over the property is bound by the doctrine of lis pendens and acquires no protectable title.
  • A bona fide purchaser must prove a valid legal title, due diligence, and payment of valuable consideration.

Court orders

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  1. 1.Declaration that the sub-division of LOC.6/GIKARANGU/3634 into LOC.6/GIKARANGU/4311, 4313, 4458 and 4459 was tainted by fraud and illegality and that those titles be cancelled for the land to revert to its original status and registration as LOC.6/GIKARANGU/3634 in the name of the 1st Defendant as trustee
  2. 2.Declaration that the trust binding parcel LOC.6/GIKARANGU/3634 be dissolved and the land shared: Grace Wambui Muchoki 2.0 acres (in trust for herself and daughters Eunice Njeri, Mary Muthoni and Felister Wanjiru); Paul Njuguna Muchoki 2.0 acres; John Karanja Muchoki 0.9 acres
  3. 3.The Deputy Registrar of the Court ordered and authorised to sign all documents and forms on behalf of the 1st Defendant to facilitate the subdivision and transfer, and the District Land Registrar, Murang'a allowed and authorised to dispense with production of the old title number LOC.6/GIKARANGU/3634 retained by the Defendant if he does not cooperate
  4. 4.Costs in favour of the Plaintiffs
Jurisdiction invoked
First-instance civil suit under the Land Registration Act, 2012 (customary trust as overriding interest under section 28(b))

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Grace Wambui Muchoki & another v John Karanja Muchoki & 3 others [2021] KEELC 4684 (KLR)", Case Analysis (2021). Not stated in the judgment as provided (plaint filed 15/5/2017, amended 9/11/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4684/eng@2021-01-14

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