Mwangi & another v Mwangi
High Court, at Nairobi December 18, 1986
Civil Suit 2306 of 1980
Land – trust - land held in trust - creation of trust - land first registered in name of defendant as youngest son – plaintiffs half-brothers of defendant – plaintiffs remaining in possession and occupation of land for 20 years – whether defendant holding land in trust for plaintiffs – whether plaintiffs acquiring title by adverse possession - Registered Land Act (cap 300) sections 28, 30 – Limitation of Actions Act (cap 22) - whether creation of trust over agricultural land and acquisition of title by adverse possession transactions requiring consent of Land Control Board – Land Control Act (cap 302).
Adverse possession – acquisition of title to land – how title is acquired by adverse possession – whether consent of Land Control Board necessary where land concerned is agricultural land – Limitation of Actions Act (cap 22) section 7 – Land Control Act (cap 302).
Customary law – Kikuyu customary law – creation of a customary trust over land – father registering land in name of young son – first registration - other sons remaining on and cultivating the land for 20 years – whether young son holding land in trust for his brothers – whether brothers acquiring title to land by adverse possession - whether trust recognized under Kikuyu customary law – Registered Land Act (cap 300) sections 28, 30.
Civil Practice and Procedure – hearing of cases - land cases – need for courts to give priority to such cases.
The two plaintiffs and the defendant were the sons of one Irungu, each one begotten of one of his three wives. At the time of land adjudication in 1957, Irungu registered one of his pieces of land in the name of the defendant, who was then 8 years old.
For over 20 years, all three parties were in possession of the land, each one cultivating his own portion of it, until the defendants asked the plaintiffs to quit.
The plaintiffs sued the defendant claiming that the land was registered in the name of the defendant to hold in trust for all of them in equal shares. The defendant, on the other hand, denied the existence of the trust and asked the court to dismiss the suit and for the plaintiffs to vacate the land.
1. The registration of a title to land is a creation of the law and one must look into the considerations surrounding the registration in order to determine whether it was envisaged that a trust should be created.
2. From the evidence, the court was satisfied that the original intention of the parties’ father was that all of them were to hold the land in equal shares. Kikuyu customary law and the Registered Land Act (cap 300), under which the land fell, recognized the law of trusts.
3. In accordance with the provisions of the Registered Land Act sections 28 and 30, the defendant’s registered interest in the suit land was subject to the overriding interests of the plaintiffs as persons in possession and occupation of the land without legal title. The plaintiff’s equitable rights were binding on the land and the land was subject to those rights when it was registered in the defendant’s name.
4. The absence of any reference to the existence of a trust in the title documents did not affect the enforceability of the trust since the provisions of section 126(1) of the Registered Land Act as to the reference of a trustee are merely permissive and not mandatory.
5. The creation of a trust over agricultural land situated in a land control area, as the suit land was, does not constitute an “other disposal or dealing” with the land within the meaning of section 6(1)(a) of the Land Control Act (cap 302) for which the consent of the local Land Control Board may be required.
6. If in 1960 the defendant considered that the land was entirely his, his having not denounced the occupation or possession of it by the plaintiffs meant that the plaintiffs had acquired a title to the land by adverse possession of it for a period exceeding 12 years.
7. Land Control Board consent is not required for rights acquired by adverse possession under section 7 of Limitation of Actions Act (cap 22).
8. (Obiter) Land is an extremely important aspect of the lives of ordinary people and land cases must be heard as quickly as possible by any forum provided by law or as agreed by parties. Such cases must get a better priority than even accident injury cases.
Judgment for the Plaintiffs.
1. Jandu v Kirpal  EA 225
2. Gatimu Kinguru v Muya Gathanji  KLR 253
1. Registered Land Act (cap 300) sections 28,30(g), 126(1)
2. Land Control Act (cap 302) section 6(1)(a)
3. Civil Procedure Rules (cap 21 Subleg) order XLV rule 15(2)
3. Limitation of Actions Act (cap 22) section 7
Mr Kamande for the Plaintiffs
Mr Gachomba for the Defendant