Ndikwe v Kamau (Civil Appeal E027 of 2023) [2024] KECA 696 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a constructive trust may be found where it was not pleaded
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
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.
Whether the respondent proved the existence of a trust over the suit properties
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
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.
Allocation of the burden of proof on a claim of trust
The burden lay on the party asserting the trust, and the trial court erred in effectively shifting it to the appellant
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.
Legal principles established
#- 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
#- 1.The appeal lodged by the appellant is allowed with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.