Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal 87 of 2004

Dorcas Indombi Wasike v Benson Wamalwa Khisa & another [2010] KECA 61 (KLR)

Court of Appeal of Kenya
12 November 2010
3,030 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal ruled that land trusts are never presumed without evidence, and boundary disputes over registered Kenyan land must first go to the Land Registrar.

What this practically means

#

Executive summary

#
This first appeal concerned the boundary between two agricultural parcels, Bungoma/Naitiri/79 and Bungoma/Naitiri/83, allotted in 1965 by the Settlement Fund Trustee under the Agriculture Act. The respondents, widow and son of the allottee of parcel 79, sued in the High Court claiming the appellant, widow of the allottee of parcel 83, held 5.3 acres in trust for them, and sought excision of that portion and cancellation of the appellant's title. Nambuye, J found that SFT had no power to alter plot boundaries, held the appellant in trust, and ordered excision and reissuance of title. The Court of Appeal, differently constituted, allowed the appeal. It held that no trust, express or implied, was proved: the respondents' predecessor had no existing right over the disputed acres, and SFT's admitted mistake could not be transferred to the appellant's husband. The Court further held that the Land Registrar had determined the boundary in 1990, that under section 21(4) of the Registered Land Act no court could entertain the boundary suit, and that the respondents never exercised their right to challenge that determination. It also held that since the allotment letters stated no acreages, no allottee was entitled to a specific acreage, and SFT's revision of payments was proper; and that the register could not be rectified on a first registration under section 143(1). The judgment of the High Court was set aside and the suit dismissed with costs to the appellant both here and below.

Questions the Court framed

#

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

  1. 1.Whether the respondents adduced evidence to establish the existence of a trust, express, implied, constructive or resulting, concerning the 5.3 acres allegedly improperly included in parcel Bungoma/Naitiri/83
  2. 2.Whether the trial court could entertain the boundary dispute notwithstanding the Land Registrar's determination under the Registered Land Act
  3. 3.Whether the Settlement Fund Trustee had power to adjust the acreages or payments of allotted parcels

Key legal issues

#
01

Existence of a trust over the disputed 5.3 acres

Holding

No trust, express, implied, constructive or resulting, was established; there was no contractual, filial or other relationship from which a trust could be implied

Reasoning

The respondents' predecessor had no existing right over the 5.3 acres and Peter Wasike owed him no duty. Any error was the Settlement Fund Trustee's, which could not be transferred to an allottee. The parties' only connection was being beneficiaries of land from a common owner; a mistake by SFT could not found a trust against the appellant.

p. 4
02

Jurisdiction of the court over boundary disputes of registered land

Holding

The trial Judge erred in entertaining the boundary dispute because the Land Registrar had already determined the boundary, and section 21(4) of the Registered Land Act barred court proceedings where boundaries had not been determined under the section; the respondents did not exercise their right to challenge the Registrar's decision

Reasoning

The Land Registrar determined the boundary on 15 January 1990, directing that it remain as shown by SFT. The respondents were given a right of appeal to the Chief Land Registrar or the High Court within thirty days but did not pursue it, instead filing a fresh suit in 1996, which was improper.

p. 4
03

Power of the Settlement Fund Trustee to adjust allotments

Holding

The trial Judge erred in holding SFT lacked power to vary acreages; allotment letters stated no acreages, so no allottee was entitled to a specific acreage, and SFT's adjustment of payments was proper and to the respondents' benefit

Reasoning

The allotment letters described the parcels only by number, without acreages, and SFT reserved a right of re-entry until transfer. Consideration varied according to the size allotted, and SFT revised payments upon resurvey. No land was taken from the respondents after allotment, so the trial Judge's finding of a reduction of acreage was erroneous.

p. 4
04

Rectification of register on first registration

Holding

Even if SFT made a mistake as to acreage, the register could not be rectified by virtue of section 143(1) of the Registered Land Act, it being a first registration

Reasoning

The court noted that title had remained with SFT as registered owner until transfer to the allottees; upon first registration the register could not be rectified to remove the disputed acreage from the appellant's parcel.

p. 5

Legal principles established

#
  • Whether or not a trust exists is a matter of evidence; the law never implies and the Court never presumes a trust save in case of absolute necessity and to give effect to the parties' intention
  • Under section 21(4) of the Registered Land Act, no court shall entertain any action relating to a boundary dispute over registered land unless the boundaries have first been determined under that section
  • On a first appeal the court must analyse the evidence and reach its own independent conclusions, while allowing for the fact that it did not see or hear the witnesses

Court orders

#
  1. 1.Appeal allowed
  2. 2.Judgment of the High Court set aside
  3. 3.Respondents' suit in the High Court dismissed
  4. 4.Costs of the appeal and of the court below awarded to the appellant, to be taxed if not agreed

The bench

#

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

majority
majority
majority
On appeal from
High Court of Kenya at Kitale
H.C.C.C. No. 27 of 1996
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate statute (not expressly stated in the judgment)

Relief refused

#

Respondents' claim for a declaration of trust, excision of 5.3 acres, and consequent orders

No trust was proved and none could be inferred or implied; the Land Registrar had already determined the boundary and the respondents did not challenge that determination

p. 5

Costs

Costs here and in the court below awarded to the appellant, to be taxed if not agreed upon

Quotable passages

#

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

Consequently, we allow the appeal, set aside the judgment of the trial court and order that the respondents’ suit in the High court be dismissed with costs here and the Court below awarded to the appellant, to be taxed if not agreed upon.
p. 5Final orders - appeal allowed and suit dismissed
The law never implies, the Court never presumes a trust, but in case of absolute necessity.
p. 3Presumption of trust
21(4) No Court shall entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined as provided in this section.
p. 4Statutory bar on boundary suits - Registered Land Act s.21(4)
Their right to question the boundary in issue was spent and it was improper for them to implead the appellant six or so years later on the same issue.
p. 4Spent right to challenge boundary determination
not only analyse the evidence, but also to come to its independent conclusions on that evidence without of course overlooking the conclusions reached by the trial Court.
p. 4Duty of first appellate court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Dorcas Indombi Wasike v Benson Wamalwa Khisa & another [2010] KECA 61 (KLR)", Case Analysis (2010). Civil Appeal 87 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/61/eng@2010-11-12

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