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Court of AppealDismissedCivil Appeal No. 141 of 2012· [2017] KECA 775 (KLR)

In the Matter of the Estate of Kipsang Kandie (Deceased) - Charles K. Kandie v Mary Kimoi Sang

Court of Appeal of Kenya
23 February 2017
3,512 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that whoever pays for land owns it through a resulting trust, but claims of family trusts must be proven with evidence.

What this practically means

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Executive summary

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This Court of Appeal at Nakuru judgment (Waki, Nambuye and Kiage, JJ.A) dismisses an appeal by Charles K. Kandie against Maraga J's decision in Succession Cause No. 475 of 1998 concerning Plot 219 in Eldama Ravine Settlement Scheme, later Baringo/Eldama Ravine 102/107. The appellant, brother of the deceased Kipsang Kandie, had sought revocation of the grant of letters of administration issued to the deceased's widow, Mary Kimoi Sang, contending the land belonged to their father, Mzee Chepkoros, and was held in trust for the brothers. The High Court found no fraud, held the widow entitled to priority under Section 66 of the Law of Succession Act, and found a resulting trust in favour of the deceased, who had advanced the entire purchase and development money while barred as a civil servant from holding settlement land in his own name. On appeal, counsel argued that a resulting trust confers only a personal remedy, relying on Sinclair Investments. The Court rejected that submission, applying Twalib Hatayan to hold that a resulting trust automatically arises in favour of the person who advances the purchase money and confers a proprietary interest. It found no trust between the deceased and his brothers, the alleged family agreement being unproved, and affirmed that claimants against an estate should sue the administrator rather than seek revocation of the grant. The appeal was dismissed with costs.

Key legal issues

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01

Whether a resulting trust gives the purchaser a proprietary or only a personal remedy

Holding

A resulting trust confers a proprietary interest: the land is held in trust for the person who advanced the purchase money, regardless of whose name it is registered in.

Reasoning

The Court adopted the statement of law in Twalib Hatayan, drawn from Snell's Equity, that a resulting trust automatically arises in favour of the person who advances the purchase money. The appellant's contrary submission rested on Sinclair Investments, an English case on fraudulent share deals and directors' fiduciary duties, which the Court found inapplicable and rejected. Since the deceased paid the entire SFT loan, Mzee Chepkoros held the land in trust for him.

p. 5
02

Whether the deceased held the land in trust for his brothers

Holding

No trust arose between the deceased and his brothers; no agreement was pleaded or proved, and the trial court's acceptance of the widow's evidence stood.

Reasoning

The law never presumes a trust; the party asserting it must prove it. The alleged family agreement that the deceased hold the land in trust was never produced in evidence. Two brothers who had occupied the land vacated it, and the trial court, having heard the witnesses, believed Mary's account that Charles was only a temporary resident. The Court found no reason to differ from those credibility findings.

p. 6
03

Whether the brothers were entitled to be included in the petition for letters of administration

Holding

The widow had first priority under Section 66 of the Law of Succession Act; the brothers had no place in the administration of the estate.

Reasoning

The deceased died intestate and Mary was his sole widow, giving her statutory first preference under Section 66. The brothers, if aggrieved, should have sued the administrator rather than seek revocation of the grant or enjoinment as co-administrators. No fraud or concealment in obtaining the grant was established.

p. 4

Legal principles established

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  • A resulting trust automatically arises in favour of the person who advances the purchase money, whether or not the property is registered in his name or that of another; the remedy is proprietary, not merely personal.
  • The onus lies on a party relying on the existence of a trust to prove it through evidence; courts will not imply a trust save to give effect to the parties' intentions.
  • Under Section 66 of the Law of Succession Act, a surviving spouse has first preference in applying for letters of administration where the deceased died intestate; persons with claims against the estate should sue the administrator rather than seek revocation of the grant.
  • On a first appeal, the Court may reappraise facts and law but will not lightly differ from findings of fact of a trial judge who saw and heard the witnesses.

Court orders

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  1. 1.The appeal is dismissed with costs

Authorities

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Legislation

  • Law of Succession ActSection 66
  • Trustee Actdefinitions of trust and trustee
  • Registered Land Act

Cases cited (8)

  • Alice Wanjiru Mwaura v. Peter Njuguna Mwaura & Anor
    [2013] eKLR

    Cited by appellant on the personal (non-proprietary) effect of a resulting trust

  • Twalib Hatayan & Anor v. Said Saggar Ahmed Al-Heidy & Others
    [2015] eKLR

    Statement of the law on constructive and resulting trusts, adopted by the Court

  • Sinclair Investments (UK) Ltd v. Versailles Trade Finance Ltd
    (CA) [2011] 3 WLR 1153

    Cited by appellant for personal remedy; held inapplicable and rejected

  • Jabane vs. Olenja
    [1986] KLR 661

    First appellate court's restraint in disturbing trial judge's findings of fact

  • Ephantus Mwangi vs. Duncan Mwangi Wambugu
    (1982-88) 1 KAR 278

    Interference with findings of fact only where based on no evidence or wrong principles

  • Mwanasokoni vs. Kenya Bus Services
    (1982-88) 1 KAR 870

    Same principle on appellate interference with factual findings

  • Gichuki vs Gichuki
    (1982) KLR 285

    Courts never presume a trust; intention must be clearly determined

  • Mbothu & 8 Others vs Waitimu & 11 Others
    (1986) KLR 171

    Same principle on non-presumption of trusts

On appeal from
High Court of Kenya at Nakuru
Succession Cause No. 475 of 1998
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (succession matter appealed from the High Court)

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, "In the Matter of the Estate of Kipsang Kandie (Deceased) - Charles K. Kandie v Mary Kimoi Sang", Case Analysis (2017). Civil Appeal No. 141 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/775/eng@2017-02-23

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