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Court of AppealDismissedCivil Appeal No. 65 of 2002

Samuel Gichina Muiruri v Evanson Kimemia [2002] KECA 291 (KLR)

Court of Appeal of Kenya
8 November 2002
2,296 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that land registered in one person's name can still belong partly to someone else under an unwritten agreement.

What this practically means

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Executive summary

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This was a first appeal by the unsuccessful defendant against a High Court of Kenya at Nakuru judgment (Nambuye J, 27 May 1994) which declared that the respondent was entitled to one-half of a 51-acre share of L.R. No. 422/14 and 10455 at Bahati, held by the appellant as trustee, and ordered subdivision and transfer. The respondent's case was that in 1971 the parties orally agreed jointly to purchase a share in Rimuko Farm from one Githinji Waweru, with the share registered in the appellant's name on the understanding that he would hold half as trustee, the respondent contributing Shs.9,750/=. The trial judge found the arrangement was structured to circumvent the 'rule of ten' limiting Rimuko Company membership, and that a trust arose which need not be in writing. The appellant advanced three broad complaints: that no trust could exist over land registered under the Registration of Titles Act; that the claim was time barred under the Limitation of Actions Act; and that the trial judge mis-evaluated the evidence, placing excessive weight on the evidence of advocate Kamere. The Court of Appeal (Omolo, Lakha and O'Kubasu JJ.A) dismissed the appeal. It held that a party relying on a trust must prove its existence and creation through evidence, which the trial judge had properly found; that the limitation point could not be entertained because Tanui J had dismissed the preliminary objection in a ruling against which no appeal was filed, and because a preliminary objection cannot be raised where facts must be ascertained; and that an appellate court will rarely disturb credibility-based findings of fact. The judgment below was affirmed and the appeal dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge erred in finding that a trust existed over the suit land
  2. 2.Whether the respondent's claim was time barred by the Limitation of Actions Act
  3. 3.Whether the learned Judge erred in her evaluation of the evidence

Key legal issues

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01

Existence of an implied trust over registered land

Holding

The trial judge correctly found that the appellant held one-half of the 51 acres as trustee for the respondent; a trust can be implied from circumstances and need not be in writing.

Reasoning

The respondent's claim was based on trust, not a written sale agreement. The appellant bought the Rimuko Farm share with the respondent's contribution of Shs.9,750/= on a clear understanding that the respondent was entitled to half, in order to circumvent the 'rule of ten' limiting Rimuko Company membership. The trial judge's finding, supported by the advocate's evidence, could not be disturbed.

p. 3
02

Limitation of Actions Act defence

Holding

The limitation defence could not be entertained on appeal because it had been fully argued and dismissed by Tanui J in a ruling against which no appeal was filed.

Reasoning

The preliminary objection based on the Limitation of Actions Act was argued before Tanui J, who dismissed it because it required ascertainment of facts about possession and a related dispute. No appeal was lodged against that ruling, so the Court of Appeal could not revisit it; the objection also failed under the Mukisa Biscuit principle since facts had to be ascertained.

p. 4
03

Appellate interference with findings of fact

Holding

The Court declined to interfere with the trial judge's assessment of witness credibility and evaluation of evidence.

Reasoning

Applying Peters v Sunday Post, the Court reviewed the evidence and concluded the trial judge could not be faulted; it would have reached the same conclusion. Reversal of credibility-based findings founded on seeing and hearing witnesses is not justified absent misapprehension of facts or overlooked evidence.

p. 3

Legal principles established

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  • A party relying on the existence of a trust must prove through evidence the existence and creation of such a trust; a trust need not be in writing and may be implied from the circumstances.
  • An appellate court will rarely interfere with findings of fact made by a trial judge who saw and heard the witnesses, unless there was a misapprehension of facts or overlooked evidence.
  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained.
  • A determination on a point of law made in a ruling in the court below, against which no appeal was brought, cannot be entertained in a subsequent appeal.

Court orders

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  1. 1.The appeal is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nakuru
NKR. H.C.C.C. No. 240 of 1990
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court (implied statutory appellate jurisdiction; no specific provision cited in the judgment)

Relief refused

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Appellant's request that the High Court judgment be reversed on the existence of a trust, limitation and evaluation of evidence

The trial judge fell into no error; the Court would not interfere with findings of fact and the limitation point was not appealable as no appeal lay against Tanui J's ruling

p. 4

Costs

The appeal was dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot of the foregoing is that this appeal must fail and is accordingly dismissed with costs.
p. 4Final orders - dismissal of appeal
We conclude this judgment by stating that the learned trial judge fell into no error in her findings on the issues of fact and law. We have no valid justification in interfering with her findings both on facts and the law. In our view she reached a correct decision.
p. 4Affirmation of the judgment below
This Court would rarely interfere with findings of fact made by a trial Judge who had the advantage of seeing and hearing the witnesses, unless it is satisfied that there was a misapprehension of the facts on the part of the trial Judge or that he/she overlooked some evidence having a bearing upon the case.
p. 3Standard for appellate interference with findings of fact
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
p. 4Nature of a preliminary objection (adopting Sir Charles Newbold P)
There is no need for a sale agreement between the defendant and the plaintiff as the relationship alleged and found to exist between them is not one of buyer and seller but that of trustee and beneficiary and there is no provision that the creating of a trust must be in writing. A trust can be implied from the circumstances of the case.
p. 3Implied trusts over land

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samuel Gichina Muiruri v Evanson Kimemia [2002] KECA 291 (KLR)", Case Analysis (2002). Civil Appeal No. 65 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/291/eng@2002-11-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.