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Court of AppealDismissedCivil Appeal No. 63 of 2017· [2020] KECA 193 (KLR)

Joseph Mosonik & another v Kipkemoi Mosonik [2020] KECA 193 (KLR)

Court of Appeal of Kenya
20 November 2020
FSF. SichaleJMJ. MohammedSKS. ole Kantai
1,870 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 winning a land trust claim requires strong documentary evidence, not just family word-of-mouth claims.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal against the ruling and judgment of Munyao Sila, J. of the Environment and Land Court at Kericho dated 1st July 2016, which had dismissed the appellants' suit with costs. The dispute concerned land parcel KERICHO/KAITIT/371, purchased from Kaitet Ranching Farmers Co-operative Society Limited. The appellants, the 1st appellant being the respondent's brother and the 2nd appellant their mother, alleged that they jointly purchased the land which was registered in the respondent's name to hold in trust for them, because the 2nd appellant lacked a national identity card. The respondent denied the trust, asserting he alone purchased the land and held the title, and that he had subdivided the parcel into three portions in 1995, selling one to a third party. The appeal was argued on written submissions; the appellants abandoned grounds 1, 5 and 6 of their memorandum. The Court, applying the Selle principles requiring it to re-evaluate the evidence as a first appeal, framed the question as whether to interfere with the trial judge's finding that no trust was proved. It reaffirmed that a trust is never implied save in absolute necessity and that clear evidence is required. It found no proof of money transfers or of the claimed necessity for the alleged resulting trust, and distinguished the Supreme Court's customary trust jurisprudence since there was no proof the land was customary land. The Court also agreed the claim was fundamentally flawed because the suit land had ceased to exist on subdivision, and the third-party owner of one subdivision was not joined. The appeal was dismissed with costs to the respondent on 20th November 2020.

Key legal issues

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01

Whether a resulting trust was proved in favour of the appellants

Holding

The Court found no cogent evidence of a resulting trust: no transfer of money to the respondent was proved, and no reason was shown why the 2nd appellant lacked an identity card, especially as she had other land registered in her own name.

Reasoning

The burden lay on the appellants under section 107 of the Evidence Act to prove their claim. The claim was pleaded as a resulting trust based on alleged contributions of Kshs. 1,500.00 and Kshs. 2,600.00 towards the purchase price. The Court, re-assessing the evidence as a first appeal, found no proof of any transfer of money and no proof of the alleged necessity (the missing identity card), the 2nd appellant in fact holding other registered land. A trust cannot be presumed without clear evidence.

p. 2
02

Whether a customary trust arose from the 2nd appellant's possession of 7 acres

Holding

No customary trust was established because there was no proof that the suit land was customary land or that the parties intended the respondent to hold it for the family's benefit.

Reasoning

The appellants relied on the Supreme Court decision in Isack M'inanga Kiebia v Isaaya Theuri M'lintari on customary trust arising from long possession. The Court distinguished it: possession alone, even since acquisition, does not establish a customary trust. There was no proof that the land was customary land, nor evidence of an intention that the registered proprietor hold it for other family members. The alleged trust therefore failed at the evidentiary threshold.

p. 3
03

Whether the trial court erred in holding the case as pleaded fundamentally flawed

Holding

The trial court was correct: the suit land had been subdivided into three parcels before suit, one of which had been sold to a non-party, so the primary prayer for subdivision could not be granted.

Reasoning

The suit sought subdivision of KERICHO/KAITIT/371, a title that had ceased to exist upon subdivision in September 1995. A court cannot order subdivision of a non-existent title. Further, the registered owner of KERICHO/KAITET/932 was not a party; cancelling or altering his title without joining him would breach natural justice. The Court agreed with the trial judge's finding and found no merit in this ground.

p. 3

Legal principles established

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  • On a first appeal, the Court of Appeal must reconsider and re-evaluate the evidence and reach its own conclusions, while making allowance for the fact that it neither saw nor heard the witnesses.
  • A trust is never implied by the court except in cases of absolute necessity, and the intention of the parties to create a trust must be clearly determined before a trust will be implied.
  • A party alleging a trust over land must table clear evidence of it; special circumstances are required before a court may find a trust on a mere oral allegation, and the burden of proof rests on the party asserting it.
  • A court cannot order subdivision of a title that no longer exists, and a registered owner of a subsequent subdivision who was not joined to the proceedings cannot have his title cancelled or altered without breaching natural justice.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent

Authorities

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Legislation

  • Evidence Actsection 107

Cases cited (6)

  • Isack M'inanga Kiebia v Isaaya Theuri M'lintari & another
    [2018] eKLR
  • Selle vs Associated Motor Boat Co.
    [1968] EA 123
  • Abdul Hameed Saif vs Ali Mohamed Sholan
    (1955) 22 E.A.C.A. 270
  • Charles K. Kandie v Mary Kimoi Sang
    [2017] eKLR
  • Gichuki vs Gichuki
    (1982) KLR 285
  • Mbothu & 8 Others vs Waitimu & 11 Others
    (1986) KLR 171
On appeal from
Environment and Land Court at Kericho
Civil Suit No. 34 of 2010
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)

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, "Joseph Mosonik & another v Kipkemoi Mosonik [2020] KECA 193 (KLR)", Case Analysis (2020). Civil Appeal No. 63 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/193/eng@2020-11-20

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