SUPREME COURT REVERSES AGE-OLD JURISPRUDENCE ON CUSTOMARY

TRUSTS IN REGISTERED LAND

Tom Ngeri & Collins Bush Wanjala1

1. Introduction
It would appear that until October 5, 2018, the Kenyan legal airwaves had been contaminated
by erroneous jurisprudence on the question as to whether a claimant of a trust under
customary law necessarily needs to prove actual physical possession, or occupation. For far
too long, the prevailing jurisprudence was the one stated in the famous cases of Esiroyo –v-
Esiroyo2 and Obiero –v- Obiero3 to the effect that the rights in land under customary law
became extinguished upon registration of the land in question by virtue of section 28 of the
Registered Land Act.

In an uncharacteristically tough language, the Supreme Court has declared that the findings
in Esiroyo and Obiero were based on ‘faulty conceptual and contextual premises’ yet had largely
been imbibed by the courts – mostly hook, line and sinker but in a handful occasions, with
some caution.

By all standards, therefore, the decision in Isack M’Inanga Kiebia –v- Isaaya Theuri M’Lintari
& Isack Ntongai M’Lintari4 is ground-breaking and carries within it monumental
jurisprudential import. It is in this regard that we think our clients – especially those who
engage directly with our Real Estate, Banking & Finance Department (and our Dispute
Resolution as we shall demonstrate later) – need to take a moment to appreciate the reach of
this decision. Needless to say, there must be a re-orientation in the manner the conveyancing
processes are conducted going forward because coming from the highest court in the land,
this decision necessarily becomes binding on all other courts.

2. The Case in Brief

Isack M’Inanga Kiebia who was the Appellant (Petitioner) went to the Supreme Court to
challenge the decision of the Court of Appeal which had dismissed his appeal of the High

1Tom Ngeri is the Senior Partner while Collins Bush Wanjala is the Managing Partner at Ngeri, Omiti
& Bush Advocates LLP. Both have an extensive experience in Property Law, Perfection of Securities,
Conveyancing and Transactional Advisories to their Clients ranging from Banks to Corporations both
in Kenya and beyond.

2 1973 EA 388.
3 1972 EA 277.
4 Petition No. 10 of 2015 (Per Maraga, Ibrahim, Ojwang’, Wanjala & Njoki, SCJJ).

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Court’s earlier decision. The brief facts were that the Petitioner and the Respondents, both
members of the Athimba Clan, shared a grandfather, M’Kiebia Baithambu. There had been a
clan agreement that the community land would be sub-divided and each portion registered
in the name of an appointed member to hold the land in trust on behalf of each household in
compliance with the land adjudication process which had set in.

The facts are further that two land parcels – No. Njia/Kiegoi Scheme 86 and Njia/Kiegoi
Scheme/70 - were allocated to their grandfather but ended up being registered in the names
of his two sons leaving out a third son who was the Respondents’ father. It was the
Respondent’s contention, to which the High Court had affirmed, that they were entitled to
1/3 of each parcel of land since they were held in trust for their father. The Petitioner appealed
to the Court of Appeal5 claiming that they had an indefeasible title by dint of registration.

The Court of Appeal, while upholding the decision of the High Court, went further to declare
that “to prove a trust in land (read customary trusts), one need not be in actual physical possession
and occupation of the land.” Stung by this unexpected twist of events, the Petitioner approached
the Supreme Court hoping find a final solace. We note that the Supreme Court largely
rendered itself on the law and traced the history of jurisprudence which had defined the legal
practice for many ages.

3. The Prevailing Jurisprudence Before the Decision

The Supreme Court reached back to the early days when these matters were first determined
by our courts. In so doing, the Court cast the tension be between registered and unregistered
claimants and reviewed the implications of Sections 27 (a) and 30 (g) of the repealed
Registered Land Act (Cap 300). In sum, Section 27 (a) provided that “the registration of a person
as the proprietor of land shall vest in that person the absolute ownership of that land together with all
rights and privileges belonging or appurtenant thereto” while Section 30 (g) provided that “the
rights of a person in possession or actual occupation of land to which he is entitled in right only of such
possession or occupation, save where inquiry is made of such person and the rights are not disclosed.”

In simple terms, the Court was being called to render itself on the question whether mere
registration of a person as the proprietor of land confers on them absolute rights over and
above those who are unregistered but otherwise may have any justifiable claims over the same
land as a result of customary trust. Various courts had interpreted Sections 27 (a) and 30 (g)
to the effect that registration of land in one’s name necessarily extinguished all other rights in

5 Nyeri Civil Appeal No. 24 of 2010.

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land and the registered proprietor obtained indefeasible title to the exclusion of all others. In
Obiero, the court (per Bennet, J) had held as follows:

…Section 28 of the Registered Land Act confers upon a registered proprietor a title
‘free from all other interests and claims whatsoever,’ subject to the leases, charges and
encumbrances shown in the register and such overriding interests as are not required
to be noted in the registered…rights arising under customary law are not among the
interests listed in S. 30 of the Act as overriding interests. Had the legislature intended
that the rights of a registered proprietor were to be subject to the rights of any person
under customary law, nothing could have been easier that for it to say so.
In re-affirming the above decision, the court (Kneller, J) in Esiroyo had also held that:

The matter (claim of interest in registered land) is taken out of the purview of
customary law by the provisions of the Registered Land Act…The rights of the
defendant under customary law have been extinguished. Section 28 of the Registered
Land Act confers upon a registered proprietor ‘a title free from all other interests and
claims whatsoever,’ subject to the leases, charges and encumbrances shown in the
register and such overriding interests not quoted in the register…Rights arising under
customary law are not among the interests listed in Section 30 of the Act as overriding
interests.
These two decisions which would later be transported in a number of succeeding judicial
authorities – wholly or partially – could be summarized to mean: (a) that the registration of land
under the Registered Land Act extinguishes customary rights to that land for all purposes; (b) rights
under customary law or such rights as existed prior to registration are not overriding interests under
Section 30 of the Registered Land Act; and (c) that the trust envisaged under the proviso to Section 28
of the Registered Land Act is the trust under English Common Law and doctrines of Equity. In other
words, customary law is incapable of creating a trust to which a registered proprietor would be subject
after registration.

It is on these grounds that the Supreme Court declared, unreservedly, that the decisions in
Obiero and Esiroyo, together with the later decisions based on them, “were based on faulty
conceptual and contextual premises.” The Court went further to give the justifications by stating
that they were “faulty conceptually because, they did not take into account the complex nature of
customary rights to land, and faulty contextually because, in interpreting Sections 27, 28 and 30 of the
Registered Land Act, the courts paid little or no attention to the relevant provisions of the retired
Constitution regarding trust land.”

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 4. The Supreme Court’s Findings – the Sound Jurisprudence
4.1. Refuge under the Repealed Constitution
The Court began its findings by revisiting the provisions of the repealed Constitution and
found startling revelations which, in its opinion, would have offered sufficient safeguards to
the courts even then without falling to the temptation of misinterpreting the law. By reviewing
Sections 115 (1) & (2), 116 (1) and 117 2) of the repealed Constitution, the Court found that
customary trust was firmly embedded in that Constitution and the courts ought not have
agonized in reaching erroneous conclusions. The Court held, remarkably in our view, that:

In our considered view, the language of Section 117 (2) of the retired Constitution, was
wrongly imported into sections 27, 28 and 30 of the Registered Land Act (now
repealed) by the judges in the cited decisions. Had the judges’ view been informed by
a proper appreciation of the nature, scope and content of the rights, interests and
benefits to land under African customary law, subsisting before individualization of
tenure, both the proviso to Section 28 and Section 30 (g) of the Registered Land Act,
would have been contextually interpreted. In this regard, there would have been no
difficulty in construing a “customary trust” under the proviso to Section 28…

4.2. Nexus Between Rights in Possession or Occupation & Customary Rights

Having declared that resort should have been had to the repealed Constitution, the Court
quickly turned to the thorny question in Section 30 (g) which had been the fulcrum before the
Court of Appeal. In the Court of Appeal, the court found that with respect to one parcel of
land, “the evidence on record was contradictory and thus could not provide conclusive proof that the
Respondents had been in possession and occupation of the said parcel. As such, the Respondents could
not found their claim upon Section 30 (g) of the Registered Land Act (now repealed).” But the Court
of Appeal went further to hold that if the Respondents were basing their claim on the existence
of a customary trust, then they could be protected, as long as the said trust was proved, adding
that “to prove a trust in land (read customary trust), one need not be in actual physical possession and
occupation of the land.”

The Supreme Court having determined this question to be of vital jurisprudential import and
thus desiring settlement and certainty, found as follows:

Flowing from our analysis, we now declare that a customary trust, as long as the same
can be proved to subsist, upon first registration, is one of the trusts to which a
registered proprietor, is subject under the proviso to Section 28 of the Registered Land

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 Act. Under this legal regime (now repealed), the content of such a trust can take several
forms. For example, it may emerge through evidence, that part of the land, now
registered, was always reserved for family or clan uses, such as burials, and other
traditional rites. It could also be that other parts of the land, depending on the specific
group or family setting, were reserved for various future uses, such as construction of
houses and other amenities by youths graduating into manhood. The categories of a
customary trust are therefore not closed. It is for the court to make a determination,
on the basis of evidence, as to which category of such a trust subsists as to bind the
registered proprietor. (Emphasis is ours.)
The Court went further to caution that each case, however, would be determined on its own
merit and evidence and that the essential considerations being the nature of the holding of the
land and the intention of the parties. It went on to prescribe certain tests which ought to apply,
to wit: (a) that the land in question was before registration, family, clan or group land; (b) the claimant
belongs to such family, clan or group; (c) the relationship of the claimant to such family, clan or group
is not so remote or tenuous as to make his/her claim idle or adventurous; (d) the claimant could have
been entitled to be registered as an owner or other beneficiary of the land but for some intervening
circumstances; and (e) the claim is directed against the registered proprietor who is a member of the
family, clan or group. It concluded by settling that “rights of a person in possession or actual
occupation under Section 30 (g) of the Registered Land Act, are customary rights,” thereby
upholding the Court of Appeal’s decision herein before stated.

4.3. The New Land Laws Dispensation

The Court noted and commented on the legislative developments which have since taken
place post the 2010 – Constitution. Among these is the enactment of the Land Registration
Act6 which repealed the Registered Land Act. Parliament almost adumbrated the provisions
of Section 28 of the repealed Registered Land Act in Section 25 of the Land Registration Act
but with a caveat at Section 25 (2) thereof that “Nothing in this section shall be taken to relieve a
proprietor from any duty or obligation to which the person is subject to as a trustee.” Similarly, the
provisions of Section 30 (g) were amplified in Section 28 (b) of the new law where “trusts
including customary trusts” have been identified as part and parcel of the overriding interests
in land.

In essence, therefore, even though the wording in the repealed Section 30 (g) of “the rights of a
person in possession or occupation” is not anywhere near Section 28 of the new law, the Court

6 No. 3 of 2012.

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held that these rights have been subsumed in “customary trusts” and which can be adduced
by way of evidence, as arising, “although not exclusively, from the fact of rightful possession or
actual occupation of the land.” In other words, far from downplaying rights arising as a
consequence of customary trusts, the new laws seem to have magnified these rights to the
extent of being overriding interests expressly recognized by statute and hence remain valid to
date.

5. Implications of the Supreme Court Decision

Whereas the Court noted that the decision it made was “forward-looking and has no effect on
cases already decided,” in our opinion, this decision has far-reaching consequences to which our
esteemed clients would do well to pay heed. Firstly, for our bank clients, it would be
important, at the point of taking security in land to insist on obtaining an assurance from the
chargor that the property being given as security is not “a trust land including customary
trusts” but in case it is, then unequivocal consents from the beneficiaries ought to be obtained.
This also goes for individual purchasers who may want to obtain similar assurance. The
reason is that, as the decision demonstrates, “trusts including customary trusts” are
overriding interests to land and have always been so even when the reigning jurisprudence
in the land regrettably suggested otherwise.

Secondly, those who have unduly been deprived of their rights arising from “trusts including
customary trusts” stand a chance to reclaim their rights as the same are clearly justiciable –
and they can do that without any fear of reproach. However, in order to succeed, and as we
have demonstrated in our analysis above, the five-step test which we earlier set out flowing
from the decision, must be applied. The Court, while appreciating that some ‘idlers or
adventurous’ litigants may attempt to eat into the limited judicial time, warned that “each case
has to be determined on its own merits and quality of evidence” going further to add that “it is not
every claim of a right to land that will qualify as a customary trust.”

6. Conclusion
In one stroke, the Supreme Court settled the law which has been meandering from the early
1970’s by recognizing customary trusts as valid rights that are protected by the law – and not
merely as equitable rights. The Court demonstrated that this was always the correct
interpretation of the law – both the repealed Constitution and the Registered Land Act – yet
for some unexplained reason, our courts hastened to reach a faulty conclusion and, in the
process, set a bad precedence. This correct position is now reiterated in no uncertain terms in
the Land Registration Act and there should be no reason whatsoever for any court to

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misconstrue the law unless Parliament acts otherwise – which is unlikely, at least in the
foreseeable future.

To this end, we have advised our clients – banks and individual purchasers alike – to ensure
that they insist on obtaining assurances or consents in relation to the aspect of “trusts
including customary trusts.” Failure to do so, in our opinion would jeopardize the titles which
they may end up holding either as securities or as their own should beneficiaries to the trust
come forward (especially if they had not consented). In addition, we have advised those who
may think their rights in trust (including customary trusts) have been infringed can seek
justice before our courts considering that the Supreme Court decision has settled the law on
that question. However, in order to succeed, there are tests which must be adhered to and
each case shall be determined on its own merit.

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