Mutsonga v Nyati

High Court, at Mombasa September 12, 1984

Kneller J

Civil Suit No 295 of 1976

Land – land registration – first registration of land – effect of – whether land register is capable of rectification where registration is a first registration – meaning of rectification – procedure where first registration is a mistake – order by court of transfer of land to rightful owner – whether change in land register reflecting such transfer amounts to rectification of the register.

Customary law – customary rights to land – whether customary rights interests are overriding rights – land owned and administered under customary law of the Mijikenda – land later registered in name of defendant as absolute proprietor – effect of such registration on customary rights - Registered Land Act (cap 300).

Fraud – proof of fraud – standard of proof.

Equity – trust - constructive trusts – land held under customary law – first registration of land in name of another person as absolute proprietor –registration done by mistake - effect of registration on rights of customary owner - applicability of doctrine of trust .

The plaintiff filed a suit asking the court for, among other things, a declaration that the defendant held the piece of land forming the subject of the suit in trust for him. The plaintiff averred that he had borrowed some money from the defendant and as security for the loan, he let the defendant use the land but the defendant had fraudulently caused himself to be registered as the absolute proprietor of the land and had declined to restore the land to the plaintiff even after the plaintiff had tendered the loan money for repayment. The defendant, in his defence, claimed that the plaintiff and his father had received the money from him not by way of a loan but in exchange for the land. He claimed further that the registration of the land in his name was done openly and lawfully and that for about ten years, he had been in possession of the land and the plaintiff had no entitlement to it. The evidence showed that prior to registration, the land belonged to the plaintiff’s father, who had died before the commencement of the suit, and the land was administered according to the customs of his people, the Jibana, who were one of the nine tribes of a people known as the Mijikenda. Among the Mijikenda, it was believed that land was given by God to the clan and the elders apportioned it to the clan members. Those partitions were known as the land of those members as a matter of identification and were normally passed from father to son. Prior to registration therefore, a sale of Mijikenda land was improbable and would normally involve a meeting called by a chief. The Mijikenda nevertheless recognized arrangements whereby one person would occupy and use the land of another in return for money but under circumstances forbidding the occupier from becoming the owner of the land and enabling the other to re-occupy it upon the satisfaction of agreed terms.

Held:

1. Allegations of fraud must be strictly proved and although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, a high degree of probability is required, which is something more than a mere balance of probabilities, and it is a question for the trial judge to answer.

2. On the evidence, the registration of the defendant as the absolute proprietor of the land was made by mistake and not by fraud.

3. Though it had been established on the evidence that the plaintiff’s father was the owner of the land under customary law, however under the Registered Land Act (cap 300) section 30, customary land rights are not overriding interests to which the title of a registered proprietor of land is subject.

4. The equitable doctrines of implied, constructive and resulting trusts are applicable to registered land by virtue of section 163 of the Act which provides for the application of the common law of England as modified by equity. A constructive trust arose in favour of the plaintiff’s father as the owner of the land under customary law when the land was first registered in the name of the defendant.

5. Though section 143 of the Act forbids any rectification of the land register where such rectification concerns a first registration, the meaning of rectification, which is the sense in which it is often applied, is to correct an entry in a register, and this is different from making an entry recording a lawful transfer ordered by a court.

6. The words “as trustee” should have been entered against the defendant’s title on the land register but that needed not be done after the many years that had passed. The defendant’s name also needed not be struck out of the register but a line would be added to the register under the first registration to make the register conformable with the transfer of the land to the plaintiff as ordered by the court.

Judgment for the plaintiff.

Cases

1.Obiero v Opiyo and others [1972] EA 227

2. Esiroyo v Esiroyo and another [1973] EA 388 (K)

3. Kiama v Mathanya Civil Appeal No 42 of 1978 (unreported)

4. Hussey v Palmer [1972] 1 WLR 1286, 1289, 1290 (CA); [1972] 3 All ER 744

5. Pulbrook v Richmond Consolidated Mining Co (1878) 9 Ch D 610

6. Re National Bank of Wales (1897) 6 LJ Ch 222, 226, 227

7. Mason v Clarke [1955] AC 778; [1954] 1 All ER 189

8. Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205

9. Ratilal Gordhanbhai Patel v Lalji Makanji [1957] EA 314

10. Hornal v Neuberger Products Limited [1957] 1 QB 247 (CA); [1956] 3 All ER 970

11. Gross v Lewis Hillman Ltd [1970] Ch 445; [1969] 3 All ER 1476

12. Ludgater v Love (1881) 44 LT 694

Texts

1. Parkin, D.J. (1972) Palms, Wine and Witnesses: Public Spirit and Private Gain in an African Farming Community London: Chandler Publishing pp 53, 54

2. Dias, R.W. (Ed) (1982) Clerk & Lindsell on Torts London: Sweet & Maxwell, 15th Edn p 843 para 17-20

3. Simmonds, V. at al, (Ed), (1959) Halsbury’s Laws of England London: Butterworth & Co 3rd Edn vol XXVI p 845 para 1572

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XXIV rule 1

2. Registered Land Act (cap 300) sections 28, 30, 143, 163

3. Companies Act 1862 [UK] section 35

Advocates

Mr M Muhuni for Plaintiff

Munini & another v Nzambi

High Court, at Mombasa May 14, 1984

Kneller J

Civil Case No 751 of 1977

Marriage – customary marriage – Kamba customary marriage – essentials of – proof of such marriage.

Customary law – Kamba customary law – marriage – essentials of marriage.

Evidence – burden of proof – standard of – burden and standard of proof in civil cases – party on whom burden of proof lies – party having special knowledge of issue – party likely to fail if no evidence is given – Evidence Act (cap 80) sections 107, 108, 112.

The plaintiffs, as the wives under Kamba customary law of the deceased, who had died intestate, instituted a suit against the defendant who the Public Trustee intended to include as a third wife of the deceased in the distribution of the assets of his estate. In the suit, the plaintiffs sought declarations that the defendant was not the lawful wife or heir of the deceased and was not entitled to any share of his estate, the rendering of an account, damages and costs. During the trial, the plaintiffs’ advocate raised the question whether the decision of the Court of Appeal for East Africa in Hortensiah Wanjiku Yawe v The Public Trustee, Civil Appeal No 13 of 1976, which touched on matters of the proof of the existence of a customary marriage and which the court in this case intended to follow, was unconstitutional, and further submitted that the question should be referred to the High Court under section 67 of the Constitution because the decision was contrary to the provisions of section 3(2) of the Judicature Act (cap 8).

Held

1. Whether the defendant was married to the deceased under customary law was a matter which was specially within their knowledge and so the burden of proving, upon a balance of probabilities, the facts which qualified their union as such marriage was upon the defendant.

2. As the plaintiffs were the parties who would fail in the suit if no evidence were given on either side, the burden lay on them to prove, on a balance of probabilities, that the defendant was not married to the deceased under Kamba customary law and if so, that she unlawfully intermeddled with his estate and the loss, if any, suffered by the estate.

3. The question whether the decision of the Court of Appeal for Eastern Africa in Hortensiah Wanjiku Yawe v The Public Trustee, Civil Appeal No 13 of 1976 was unconstitutional would not be referred to the High Court as the decision was not repugnant to justice or inconsistent with any written law as provided in section 3(2) of the Judicature Act (cap 8).

4. Even if that decision was repugnant to justice and inconsistent with written law, it would not be a question as to the interpretation of the Constitution requiring reference to the High Court within the meaning of section 67(1) of the Constitution.

5. It had been proved that the deceased and the defendant were man and wife under Kamba customary law and though some ceremonies and rituals for such a marriage had not been fulfilled before the deceased’s death, they did not affect the presumption or the validity of the marriage.

6. The plaintiffs had not proved that the defendant had unlawfully meddled with the deceased’s estate.

7. The costs of a suit are in the discretion of the court. In the circumstances of this case, the costs would go to the defendant against the plaintiffs.

Appeal dismissed.

Cases

1. Hortensiah Wanjiku Yawe v The Public Trustee Court of Appeal Civil Appeal No 13 of 1976 (unreported)

2. Mwagiru v Mumbi [1967] EA 639 642

3. Toplin Watson v Tate [1937] 3 All ER 105

4. Sastry Veliader Areniegary v Deinbecutty Vaigalie (1880-1) 6 AC 364

5. Shepherd George v Thye [1904] 1 Ch 456

6. Duncan Gachrini Ngare v Joseck, Susan Kaniana and Rose Ngina Nyakio Nairobi Civil Suit 1460 of 1970 (unreported)

7. In the Matter of the Estate of Jonah Gachiani Nairobi Civil Suit 2602 of 1977 (unreported)

8. Frances Jacinta Chesire v Reuben Kiplangat Chesire Nairobi Civil Suit No 4093 of 1982 (unreported)

10. Kisito Charles Macharia v Rosemary Moraa Nairobi Miscellaneous Civil Cause No 364 of 1981(unreported)

Texts

Cotran, E. (1968) Restatement of African Law: Laws of Marriage and Divorce London: Sweet & Maxwell, Vol I pp 23, 24

Statutes

1. Evidence Act (cap 80) sections 107, 108, 112

2. Constitution of Kenya section 67

3. Judicature Act (cap 8) section 3(2)

Advocates

Mr Mututo for Appellants

Mr Kiambo for Defendant