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Court of AppealPartially AllowedCivil Appeal (Court of Appeal, Nyeri)· [2024] KECA 696 (KLR)

Ndikwe v Kamau (Civil Appeal E027 of 2023) [2024] KECA 696 (KLR)

Court of Appeal of Kenya
21 June 2024
3,502 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that whoever claims land is held in trust must prove it with solid evidence - courts won't assume a trust exists.

What this practically means

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Executive summary

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This is a first appeal from a ruling dated 28th September 2022 of the Environment and Land Court at Nyeri, which had found that the appellant, the registered proprietor of three Nanyuki/Marura parcels and widow of Simon Wamiti (a son of the late Ndikwe Mungatu from his first house), held those properties in trust for the first house of the deceased, and directed that a sixth share be transferred to the respondent, a granddaughter of the deceased. The Court of Appeal, comprising Jamila Mohammed, L. Kimaru and A. O. Muchelule, JJ.A, allowed the appeal. It reaffirmed the duty of a first appellate court to re-evaluate the evidence and reach its own conclusions. It held that a constructive trust may be inferred even where not pleaded, being a trust arising by operation of law, but that a party asserting a trust bears the burden of proving it with plausible, cogent evidence, since courts never presume a trust save in cases of absolute necessity. On re-assessment, the Court found sufficient evidence that the suit properties had been allocated to the appellant's late husband because he contributed towards the purchase price, corroborated by surviving members of the first house, and that none of the first-house members objected to the appellant substituting her husband as administrator or challenged the probate decision delivered over twenty years earlier. The trial Judge was found to have misapprehended the evidence. The appeal was allowed with costs.

Key legal issues

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01

Whether a constructive trust may be found where it was not pleaded

Holding

The court held that the failure to plead constructive trust did not preclude the trial court from inferring it, as constructive trusts arise by operation of law

Reasoning

The appellant argued that the ELC erred in finding a constructive trust when the respondent did not plead it. The Court of Appeal held that constructive trusts belong to the category of trusts established by operation of the law, and hence the absence of a specific plea did not bar the trial court from inferring one if the circumstances permitted. This point, however, did not save the respondent's case, which failed on the evidence.

p. 4
02

Whether the respondent proved the existence of a trust over the suit properties

Holding

The respondent failed to discharge the burden of proving that the appellant held the suit properties in trust for the first house; the evidence showed the properties were allocated to the appellant's late husband for his contribution to the purchase price

Reasoning

Upon re-evaluating the evidence, the Court found that the appellant's late husband contributed towards the purchase of the suit properties, corroborated by an affidavit of surviving members of the first house and by testimony of the respondent's own witness. None of the first-house members objected to the appellant substituting her husband as administrator or challenged the probate decision. The trial Judge therefore misapprehended the evidence.

p. 6
03

Allocation of the burden of proof on a claim of trust

Holding

The burden lay on the party asserting the trust, and the trial court erred in effectively shifting it to the appellant

Reasoning

Relying on Juletabi African Adventure Limited v Christopher Michael Lockley, the Court reaffirmed that the onus lies on a party relying on the existence of a trust to prove it through evidence, and that courts never presume a trust save in cases of absolute necessity. The respondent did not adduce plausible, cogent evidence to underpin a declaration of trust.

p. 5

Legal principles established

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  • A party relying on the existence of a trust bears the burden of proving it through evidence, and courts will not imply a trust save in cases of absolute necessity
  • A constructive trust may be inferred by a court even where not specifically pleaded, because constructive trusts are established by operation of the law
  • On a first appeal, the Court of Appeal must analyze and re-assess the evidence on record and reach its own conclusions
  • A constructive trust is an equitable instrument serving the purpose of preventing unjust enrichment

Court orders

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  1. 1.The appeal lodged by the appellant is allowed with costs

Authorities

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Legislation

  • Evidence ActSection 109
  • Evidence ActSection 112

Cases cited (6)

  • Gitobu Imanyara & 2 Others v Attorney General
    [2016] eKLR
  • Selle v. Associated Motor Boat Co.
    [1968] EA 123
  • Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 Others (Petition 18 (E020) of 2022)
    [2023] KESC 106 (KLR)
  • Juletabi African Adventure Limited & Another v Christopher Michael Lockley
    [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 Nyeri
Not stated in the judgment
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (provision not expressly cited in the judgment)

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, "Ndikwe v Kamau (Civil Appeal E027 of 2023) [2024] KECA 696 (KLR)", Case Analysis (2024). Civil Appeal (Court of Appeal, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/696/eng@2024-06-21

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