Mwangi & another v Mwangi

High Court, at Nairobi December 18, 1986

Shah CA

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.

Held:

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.

Cases

1. Jandu v Kirpal [1975] EA 225

2. Gatimu Kinguru v Muya Gathanji [1976] KLR 253

Statutes

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

Advocates

Mr Kamande for the Plaintiffs

Mr Gachomba for the Defendant

Mundia v Republic

High Court, at Nairobi December 17, 1986

Tanui J

Criminal Application No 532 of 1986

(In an intended appeal from a conviction and sentence of the

Senior Resident Magistrate’s Court at Kiambu, Ombonya Esq)

Bail – pending appeal – admission to – power to grant – discretionary power – exercise of – factors to be taken into account.

The appellant had been charged and convicted by the magistrate’s court of the ofences of malicious damage to property and assault causing actual bodily harm contrary to sections 339(1) and 251 of the Penal Code respectivley. He was sentenced to 18 months imprisonment on both counts, the sentences to run concurrently. The appellant then made the application for bail pending entering of appeal under section 356 of the Criminal Procedure Code (cap 75).

Held:

1. The Criminal Procedure Code (cap 75) section 356 permits admission to bail pending appeal.

2. Admission to bail pending appeal is a discretionary power which the court must exercise judicially in accordance with laid down principles.

3. Once a person has been convicted and sentenced, his application for bail pending appeal will be granted only in exceptional circumstances.

4. There is a presumption that once a person is convicted he was properly convicted.

5. The chances of the appeal succeeding is a factor for consideration in arriving at a decision in an application for bail pending appeal.

6. Bail pending appeal may be granted where there is a risk that the sentence will have been served by the time the appeal will be heard but there must exist the major issue of overwhelming chances of the appeal in the first instance.

7. In the present case there were no exceptional circumstances or combination of factors favouring the granting of bail.

Application refused.

Cases

1. Motichand v Republic Criminal Application No 21 of 1972 (unreported)

2. R v Watton (1979) 68 Crim App Rep 293

Statutes

1. Penal Code (cap 63) sections 251, 339(1)

2. Criminal Procedure Code (cap 75) section 356

3. Constitution of Kenya

Advocates

Mr Harwood for the Republic

Mr Khaminwa for the Applicant

Republic v Kigera

High Court, at Nairobi

November 27, 1986

Mbaluto & Bosire JJ

Criminal Appeal No 48 of 1986

(Appeal from an Order of the First Class District Magistrate’s Court at City Hall Nairobi, RM Desai Esq)

Landlord and Tenant – closure of premises on grounds public health - Public Health Act (cap 242) – magistrate’s court ordering closure of premises after hearing the evidence of landlord and a Public Health Officer –court not hearing the tenants – whether court having jurisdiction to make such order - whether order contrary to rules of natural justice – whether tenants entitled to be heard – procedure that the court should adopt in exercising its power of closure or demolition of premises under the Public Health Act.

Natural justice – right of a person not to be condemned unheard – court making order of closure of premises under the Public Health Act (cap242) – tenants not heard by court – tenants required to vacate the premises – whether order of closure contrary to natural justice – whether tenants entitled to be heard.

A District Magistrate’s Court of the First Class made an order under the Public Health Act (cap 242) for the closure of certain premises after it heard the evidence of a Public Health Officer and the landlord and found the premises to be unfit for human habitation.

The premises was under the occupation of 35 tenants. The effect of the magistrate’s decision was that they were to clear from the premises and to re-occupy it after the nuisances had been removed.

The landlord did not appeal against the magistrate’s decision and in due course, copies of the order to vacate the premises were served on the tenants, one of whom complied. The Legal Advice Centre filed this application for the remaining tenants in which it argued that the tenants had been condemned unheard and that the City Court had no jurisdiction to make the closing order as the premises was subject to the Rent Restriction Act (cap 296).

Held:

1. A court has a duty not only to do justice but also to show that justice has been done. In this case, the court heard the landlord and the Public Health Officer, but not the tenants. There was no reason on the record why the tenants were not heard. There was clearly a denial of justice.

2. It was imperative for the court to hear the tenants and any other person who, in its judgment, was reasonably likely to be affected by the order of closure.

3. The rules of natural justice are inherent in all proceedings be they judicial or administrative, unless there is express provision to bar a court from hearing any interested party. The fact that there was no express provision in the Public Health Act (cap 242) empowering the court to hear the tenants did not mean that the court was divested of or denied jurisdiction to hear them.

4. The Rent Restriction Act (cap 296) did not divest jurisdiction from the subordinate courts in dealing with closure or demolition of dwelling houses for public health reasons under the Public Health Act.

5. The principal issue in considering whether the order of closure was to be left to stand was whether the failure to hear the tenants had occasioned a failure or miscarriage of justice. Upon a consideration of the matter, it was manifestly clear that there had been a failure of justice as it was possible that if the court had heard the tenants, it may not have been persuaded to make the order.

6. (Obiter) [The court, on the invitation of counsel, laid down a procedure for the guidance of the subordinate courts in the exercise of their powers of closure or demolition under the Public Health Act. That procedure is enumerated in the judgment of the Court].

Order of closure vacated, matter referred back to the City Court with a direction that all tenants or any persons who may be reasonably affected by an order of closure should be summoned to show cause why such order should not be made.

Cases

Njeru, Ibrahim v R Mombasa High Court Criminal Revision Case No 12 of 1979 (unreported)

Statutes

1. Rent Restriction Act (cap 296) generally, Preamble; sections 5, 37(2)

2. Public Health Act (cap 242) sections 120(1), (9)

3. Criminal Procedure Code (cap 75) generally

Advocates

P Nowrojee for the Applicants

Harwood, Senior State Counsel, for the Respondent

Muguku for the Landlord