The judicial response in terms of implementation of the particular requirements where there is non-registration where it is mandatory.

Natural law school of thought advances the thought that no legislature would have intended to create consequences so severe as those which flow from a positivist interpretation of the Act.  To their mind the entire process of legislation after adjudication and consolidation has taken place was intended to clarify the issue of land held under customary law and the idea was to ascertain the question of ownership of such land as these particular areas had not been subjected to a registration regime and the idea was to bring them under a registration regime. 

The rights created in the course of implementing the process were rights based on customary law.  In terms of determining their application and scope, one necessarily needs to fall back on the customary law domain to inform the task of ascertaining the enjoyment and exercise of these rights and it is only through customary law that one can determine that particular issue.  What this school of thought subscribes to is the view that registration was never intended to make landless certain groups of people who had always depended for their livelihood on property communally held.  The intention of parliament could not have been that people depending on communal property be thrown out and the property registered in the names of a few people.

The idea remains that of preserving those rights and interests and one of the most ardent proponents of this particular view is Mr. Justice Muli in the case of Samwel v. Priscila Wambui HCC 1400   Justice Muli makes a case for natural law interpretation by arguing that registration of titles is a creation of the law and one must look into the circumstances surrounding each case as well as customary law and practice with regard to land holdings in force at any given time in order to determine whether or not you can infer in the process of registration the existence of a trust.  The institution of a Trust comes in handy to mitigate some of the inequities or harsh consequences which a positivist …. Would lead to in situations that involve communities that are essentially land based and very much dependent on land for their livelihood.  The purpose of registration must in all cases be understood to be preservation of family land and not to disenfranchise other members of the family who may not have gotten their names registered.  Consequently any person who is registered as an absolute owner of family land will unless the surrounding circumstances establish otherwise would be taken to be a trustee.  Registration of family land leads to the person entrusted with the title being the trustee on behalf of all who depend on that land for survival.

Two forms of trust can be inferred, customary trust view which is found in almost nearly all African communities, property ownership is that land is owned by everybody, the living, the dead, the unborn and cannot therefore be converted into an absolute proprietorship merely through the tick of registration.  Land being a commodity of property, generations, it cannot be the case that merely by applying a stroke of registration that you can change that position so as to make it the property of one or a few people.  The process of registration against this background should not be considered to have been intended to expropriate family land and leave it in the hands of the individuals.  The process of registration appears to have been to guarantee the rights of all members with a stake in that property and hence the customary law trust view.  Accordingly the individual registered as proprietor holds the same as a trustee and not an absolute tile holder.  This trustee arises from the customary law view which says that all family members are entitled to a share or right of access and therefore you cannot kick them out by a tick of registration.

There are cases that have held that particular view, Mwangi Muguthu v. Maina Muguthu, unreported CA 337 OF 1968 this case specifically mentions that according to the Kikuyu customs, the notion of trust is inherent and so even where a person is registered as a sole proprietor of family land without the express mention that he is registered as a trustee in the register, it will not befit the influence of a trust in that sort of arrangement because the Kikuyu customary law has the notion of trust inherent in it.

Hosea Njiru (1976 E.A.L.R) Simpson J.  recognized existence of a customary trust and ordered the defendant to execute a transfer in favour of the plaintiff notwithstanding that this was in respect of impeachable absolute first registration title.

Limuli and Sabei case unreported H.C. C 222 OF 1978 where the court noted that unless a contrary intention is shown a customary trust is to be presumed under S. 27 and 28 of RLA once it is shown that land in question is family land.

The other notion of Trust is invoked in the so called English Trust View.  English law has express trust, constructive trust, implied trust and resulting trust.  All these are well-defined doctrines under English common law.  The general principle is based on the English trust view was stated in the Limuli case by Cotran J.  he observes that it is now generally accepted by the courts of Kenya that there is nothing in the RLA which prevents the declaration of a trust in respect of registered land even if it is a first registration and there is nothing to prevent the giving of effect to such a trust by requiring the trustee to do his duty.  Those duties are of course fairly well defined under the English Notion of a trust.  The court is adverting that those principles will apply in our situation even where a first registration is the subject matter of litigation.

ALAN KIAMA V. Ndia Muthuma (unreported) 176 of 1973 where Justice Law went so far as to find the existence of a constructive and express trust based on the same set of facts and in the opinion of the court this was necessary to mitigate the harsh consequences of the positivist interpretation of the provisions of the RLA in conditions which pit members of a family in some kind of war with one another in a society which is predominantly land based.  To articulate the natural law theory is to abandon the express letter as worded in the statutes and emphasise more on the spirit rather than the letter of the law, the important point being that what would parliament have intended.  The answer in the opinion of the natural law school is that parliament could not have wanted to render people landless and the interpretation must be consistent with that understanding.  The bottom line is that parliament has not taken any legislative initiative to intervene and clarify or enact or introduce provisions to get rid of the confusion and until they do the position remains that we have the two different positions.


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