Francis Kaagu Karichu v Lucy Nyambura Mburu [2019] KECA 423 (KLR)
The bottom line
#The Court of Appeal confirmed that Kenyan courts will uphold family land trusts proven by evidence, and only revoke succession grants on clear fraud.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the deceased held the suit property in trust for Johnson and Peter
- 2.Whether the conditions for revocation of a grant under section 76 of the Law of Succession Act were met
Key legal issues
#Whether the deceased held the suit property in trust for Johnson and Peter
Yes - the respondent proved a clear intention that the deceased hold the property in trust, she having not paid the purchase price or been in a financial position to do so.
The court applied the principles from Twalib Hatayan on resulting trusts: the burden lay on the respondent to prove the trust through evidence. Four defence witnesses testified that Peter and Johnson paid the purchase price of Kshs 12,000.00 and offset the SFT loan, and that registration in the deceased's name was because they were ineligible for another SFT property. The deceased lacked income to purchase. The totality of evidence established the intention to create a trust, so the trial judge did not err.
Whether the grant and certificate of confirmation should be revoked under section 76 of the Law of Succession Act
No - the appellant failed to demonstrate that the grant was obtained fraudulently or by concealment of material facts.
The court set out the three grounds in section 76 of the Law of Succession Act. Because the court found as a fact that the deceased held the property in trust for Johnson and Peter, the appellant's claim that his brothers fraudulently left out the other beneficiaries failed. There was no defective process, no false statement and no material concealment warranting revocation of the grant or its confirmation.
Legal principles established
#- The existence of a trust is a matter of fact that must be proved by evidence; courts will not imply a trust save to give effect to the intention of the parties, which must be clearly determined before a trust is implied.
- A resulting trust automatically arises in favour of the person who advances the purchase money, whether or not the property is registered in that person's name.
- On a first appeal, the appellate court's duty is to re-evaluate, re-assess and re-analyze the evidence adduced in the court below and reach its own conclusion.
- A grant of representation may be revoked or annulled under section 76 of the Law of Succession Act where the proceedings were defective in substance, the grant was obtained fraudulently by false statement or material concealment, or by an untrue allegation of an essential fact.
Court orders
#- 1.The appeal is dismissed
- 2.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Eldoret
- High Court Succession Cause No 182 of 1996
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment does not cite the specific constitutional or statutory provision)
Relief refused
#Revocation of the certificate of confirmation of grant
The appellant did not establish the section 76 grounds of fraud or material concealment of facts
Orders restraining surveying, sub-dividing or dealings in the suit property
The appeal was dismissed in its entirety, and the trust claim supporting the restraint orders failed
Costs
This being a family matter, each party bears their own costs
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.
The upshot of the foregoing is that we find the appeal has no merit and it is hereby dismissed. This being a family matter, we order that each party bears their own costs.
It is trite law that the existence of a trust is a matter of fact that must be proved by evidence.
The intention of the parities to create a trust must be clearly determined before a trust is implied.
Most importantly, the general rule here is that a resulting trust will automatically arise in favour of the person who advances the purchase money.
In the circumstances of this case, we find that the appellant did not meet the conditions for the revocation of a grant.
Issues in the judgment
#The coram/deliverance record is internally inconsistent on the date of judgment: the judgment text states it was delivered on 17th May 2013 and the header says 29th May 2013, while the delivery clause states a different delivery date
The judgment records the date of Johnson's death as after the filing of the appeal that sought to join his estate's representative
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Kaagu Karichu v Lucy Nyambura Mburu [2019] KECA 423 (KLR)", Case Analysis (2019). Civil Appeal No 64 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/423/eng@2019-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.