Mutsonga v Nyati
High Court, at Mombasa September 12, 1984
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.
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.
1.Obiero v Opiyo and others  EA 227
2. Esiroyo v Esiroyo and another  EA 388 (K)
3. Kiama v Mathanya Civil Appeal No 42 of 1978 (unreported)
4. Hussey v Palmer  1 WLR 1286, 1289, 1290 (CA);  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  AC 778;  1 All ER 189
8. Bradford Third Equitable Benefit Building Society v Borders  2 All ER 205
9. Ratilal Gordhanbhai Patel v Lalji Makanji  EA 314
10. Hornal v Neuberger Products Limited  1 QB 247 (CA);  3 All ER 970
11. Gross v Lewis Hillman Ltd  Ch 445;  3 All ER 1476
12. Ludgater v Love (1881) 44 LT 694
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
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
Mr M Muhuni for Plaintiff