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 No. 41 of 2017

Gabriel Mumela Machasio v George Wanyama Machasio [2018] KECA 69 (KLR)

Court of Appeal
7 December 2018
2,015 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal ruled that a father proved his son held family land in trust for him, and the land must now be transferred to the father.

What this practically means

#

Executive summary

#
The appellant, father of the respondent, sued by originating summons under Order XXXVI (now Order 37) of the Civil Procedure Rules to recover title No. Ndivisi/Muchi/2111, claiming that the respondent was registered as trustee for the family and that, alternatively, the respondent's title had been extinguished by adverse possession. By consent on 7th February 2013, the originating summons and affidavits were converted into pleadings in an ordinary suit to be heard by viva voce evidence. The respondent's defence was struck out for non-compliance with court orders and he neither participated in the trial nor in the appeal. The Environment and Land Court (Mukunya, J.) dismissed the suit, holding that adverse possession had not been established and that the suit was not based on trust. On appeal, the Court of Appeal held that the trial court erred in ignoring the consent order converting the originating summons into a plaint, by which the trust claim became the main relief. The court also clarified that while an implied-trust claim cannot technically be brought by originating summons (Order 37 being limited to cestui que trust under a deed or instrument), that defect was cured by the conversion. Re-evaluating the evidence, including the register, the 1974 clan distribution minutes and the respondent's 1985 letter, the court found the trust proved on a preponderance of evidence. The appeal was allowed, the dismissal set aside, judgment entered declaring the respondent trustee of the suit land, the trust determined and the land ordered registered in the appellant's name, with each party bearing their own costs of the appeal.

Questions the Court framed

#

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

  1. 1.Whether the ELC erred in dismissing the suit where the appellant claimed both adverse possession and a trust over the suit land
  2. 2.Whether the appellant's claim of beneficial interest could be brought by originating summons under Order 37 where it was based on an implied, not an express, trust
  3. 3.What was the effect of the consent order of 7th February 2013 converting the originating summons into a plaint
  4. 4.Whether the appellant proved that the respondent held title No. Ndivisi/Muchi/2111 in trust for him

Key legal issues

#
01

Effect of the consent order converting the originating summons into a plaint

Holding

The consent order of 7th February 2013 converted the O.S into an ordinary suit (plaint), and the ELC erred in ignoring that conversion and dismissing the suit solely on the adverse possession claim.

Reasoning

The court held that the trial court had power, even on its own motion under Order 37 rule 19(1), to convert the O.S into a plaint. Once converted, the plaintiff's claims based on trust and on adverse possession were both properly before the court. The ELC's finding that the suit was not based on trust overlooked the consent order and the fact that determination of the trust was the main relief sought. That error was fatal to the dismissal of the suit.

p. 3
02

Whether an implied trust claim can be brought by originating summons

Holding

Order 37 permits an originating summons only by a cestui que trust claiming under a deed or instrument; an implied trust claim does not qualify, but the defect was cured by the conversion into a plaint.

Reasoning

The court distinguished between express trusts (where the beneficiary claims under a deed or instrument and may use an originating summons) and implied trusts, which do not depend on any instrument. The appellant's claim was an implied trust arising from family land registration, so the O.S procedure was technically inappropriate. However, the consent order converting the O.S into a plaint rendered the objection academic and the claim was properly before the trial court.

p. 2
03

Whether the appellant proved the trust

Holding

On the evidence, including the register, search certificates, minutes of the 1974 clan meeting and the respondent's 1985 letter, the appellant proved that the respondent held the suit land in trust for him.

Reasoning

The respondent's defence was struck out and he gave no evidence. The register showed registration of the original title and its 1984 sub-division; the minutes of 22nd December 1974 showed the distribution; and the respondent's own letter of 26th March 1985 showed no objection to the sub-divisions. On a first appeal, the court re-evaluated this evidence and found the trust proved on a preponderance of evidence, warranting entry of judgment for the appellant.

p. 3

Legal principles established

#
  • A claim to a beneficial interest under an implied trust, not dependent on a deed or instrument, cannot technically be brought by originating summons under Order 37, but once the originating summons is converted into a plaint the claim may be litigated as an ordinary suit.
  • Where an originating summons under Order 37 is converted into a plaint (by consent or on the court's own motion under Order 37 rule 19(1)), it becomes an ordinary suit and the trial court must determine all reliefs claimed in the plaint, including trust claims.

Court orders

#
  1. 1.The appeal is allowed
  2. 2.The order dismissing the suit is set aside
  3. 3.Judgment is entered for the appellant against the respondent in terms that the respondent is registered as proprietor of title No. Ndivisi/Muchi/2111 in trust for the appellant
  4. 4.The trust is determined and the suit land to be registered in the name of the appellant as proprietor
  5. 5.Each party to bear his own costs of the appeal

The bench

#

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

majority
majority
majority
On appeal from
Environment and Land Court (High Court) at Bungoma
H.C. Civil Suit No. 83 of 2010 (O.S)
Jurisdiction invoked
First appellate jurisdiction over the Environment and Land Court; appeal on facts and law from a decree of the High Court

Relief refused

#

Costs of the suit and of the appeal against the respondent

The respondent did not participate in the appeal and the parties are father and son

p. 3

Costs

Each party to bear his own costs of the appeal.

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.

(iv) The trust is determined and the suit land to be registered in the name of the appellant as proprietor.
p. 3Final orders - determination of trust and registration
(iii) In substitution therefor judgment is entered for the appellant against the respondent in terms that the respondent is registered as proprietor of title No. Ndivisi/Muchi/2111 in trust for the appellant.
p. 3Final orders - declaration of trust
By that act, the O.S became an ordinary suit by which the appellant was claiming the suit land from the respondent as a trustee or alternatively through adverse possession.
p. 3Effect of conversion of originating summons into plaint
To the extent that the claim of beneficial interest in the suit land was not based on a deed or instrument it could not technically be brought by the procedure of originating summons.
p. 3Scope of Order 37 originating summons - implied trusts excluded
(v) Each party to bear his own costs of the appeal.
p. 3Costs order

Issues in the judgment

#
minor

The judgment describes the trial court as both the 'High Court of Kenya at Bungoma' on the cover and the 'Environment and Land Court (ELC)' in the body, with the same judge (Mukunya, J.)

minor

Typographical error in the judgment: adverse possession described as the title having been 'distinguished' instead of 'extinguished'

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Gabriel Mumela Machasio v George Wanyama Machasio [2018] KECA 69 (KLR)", Case Analysis (2018). Civil Appeal No. 41 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/69/eng@2018-12-07

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