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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal 109 of 2018· [2022] KECA 708 (KLR)

Mark Kiprotich Sirma v Sosten Kiplagat Singoei

Court of Appeal
8 July 2022
5,323 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that a registered landowner can still hold part of the land in trust for a family member who helped pay for it.

What this practically means

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Executive summary

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Two brothers disputed ownership of Nandi/Kokwet/688, a 3-acre parcel registered in the appellant's name since 1994. The appellant sued for eviction, mesne profits and an injunction, asserting an indefeasible title under the Land Registration Act. The respondent defended that both brothers jointly contributed the purchase price, that the appellant was entrusted to transact on their behalf, and that the respondent had long been in occupation. The Environment & Land Court (Ombwayo, J) dismissed the suit, declaring an implied trust in favour of the family but, absent a counterclaim, declining to dissolve it and ordering maintenance of the status quo. On appeal, Tuiyott, JA (Kiage and Mumbi Ngugi, JJA concurring) held that although the defence never used the word 'trust', its averments of joint contribution and entrustment sufficiently pleaded an implied trust, which under sections 25(2) and 28(b) of the Land Registration Act overrides registered title. Applying the principle that trusts are not lightly presumed, the Court found the respondent had proved contribution towards 2 of the 3 acres, aided by the unchallenged truthful testimony of the parties' mother and the appellant's unexplained 15-year delay in suing. The appeal was allowed only in part: the respondent was ordered to give the appellant vacant possession of 1 acre, to be curved out where the appellant's house stands, within 60 days. Each party was left to bear its own costs, the Court noting the family nature of the dispute and the only partial success. The Court left the trust undissolved, acknowledging the untidy outcome.

Key legal issues

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01

Whether trust was sufficiently pleaded in the defence

Holding

Yes. Although the word 'trust' was not used, the averments of joint contribution, entrustment, registration in the appellant's name alone and the respondent's possession read together pleaded that the appellant holds part of the land in trust for the respondent.

Reasoning

Order 2 Rules 4(2) and 10 of the Civil Procedure Rules require specific pleading of trust as a defence to recovery of land. The test is whether the pleading signals the case the other party must meet. The defence's averments of joint purchase price contribution and entrustment were a sufficient, if inelegant, plea of an implied trust.

02

Whether the respondent proved an implied trust defeating the appellant's registered title

Holding

Yes, partially. The respondent proved a resulting trust over 2 of the 3 acres he paid for; the appellant's title was indefeasible only as to the remaining 1 acre.

Reasoning

Section 28(b) of the Land Registration Act makes trusts overriding interests and section 25(2) preserves trustees' duties, so registration does not defeat a proved trust. The unchallenged truthful testimony of DW2 (the parties' mother) and the respondent's evidence of contribution, plus the appellant's 15-year delay in suing, supported the trust finding. The valuation report showing two houses corroborated each party's stake.

03

Whether the trial judge decided outside the pleadings

Holding

No. The declaration of trust was in consonance with the case pleaded by the respondent in his defence.

Reasoning

The appellant complained the trial court's implied-trust finding was not pleaded. The Court found the defence averments amounted to a plea of trust, so the trial judge's declaration was within the pleadings; the absence of a counterclaim only limited the relief to maintaining the status quo rather than dissolving the trust.

p. 7

Legal principles established

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  • Trusts, including customary trusts, are overriding interests under section 28(b) of the Land Registration Act and section 25(2) preserves a proprietor's duties as trustee, so indefeasibility of title yields to a proved trust.
  • A defendant to an action for recovery of land must specifically plead every ground of defence, including trust, but pleadings are sufficient if they foreshadow the defence the other party must meet, however inelegantly worded.
  • A court will not easily presume a trust; it will only imply a trust to give effect to the true intention of the parties, which must be clearly determined.
  • On a first appeal, the Court re-evaluates the evidence afresh and draws its own conclusions while making due allowance for not having seen or heard the witnesses.

Court orders

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  1. 1.Appeal partly allowed, succeeding only to the extent of 1 acre
  2. 2.The respondent shall within 60 (sixty) days of the decision grant vacant possession of 1 acre in Nandi/Kokwet/688 to the appellant
  3. 3.The 1 acre shall be curved out from the portion of land on which the appellant's house currently stands
  4. 4.No order as to costs; each party to bear its own costs
On appeal from
Environment & Land Court at Eldoret
Environment & Land Court Case No. 491 of 2013
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Civil Appeal from the Environment & Land 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, "Mark Kiprotich Sirma v Sosten Kiplagat Singoei", Case Analysis (2022). Civil Appeal 109 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/708/eng@2022-07-08

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