Koross (Suing as the Administrator of the Estate of the Late Elijah CA Koross) v Kiptoo & 6 others (Civil Appeal E088 of 2023) [2025] KECA 1031 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that people who paid for land decades ago hold an overriding trust that defeats a registered title, and dismissed the appeal entirely.
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 counterclaims offended the doctrine of res judicata
- 2.Whether the respondents' counterclaims were barred by limitation of time
- 3.Competency of the parties' pleadings (appellant's unconfirmed grant of letters of administration; absence of verifying affidavit on the 1st – 6th respondents' counterclaim)
- 4.Whether a partnership existed between the appellant, the 4th, 5th, 6th and 7th respondents and, if so, to what extent
- 5.Whether the appellant held the suit land in trust for the 4th, 5th, 6th and 7th respondents
- 6.Whether the particulars of fraud were pleaded and proved
- 7.Whether the notices of cross appeal were regularly filed
Key legal issues
#Res judicata
The doctrine did not apply: the 4th, 5th, 6th and 7th respondents were never parties to Kitale HCCC No. 89 of 1997 (as held in Eldoret Civil Appeal No. 223 of 2013), and the prior miscellaneous proceedings were determined on technicalities or concerned different parties and subject matter.
For res judicata there must be a final judgment on the merits by a competent court between the same parties over the same subject matter. The respondents only gave evidence in the earlier suit; giving evidence is not joinder as parties. The Nakuru and Nairobi miscellaneous causes did not determine proprietary interests, and the other suits involved different issues or parties. The Court adopted the trial judge's analysis and dismissed this ground.
Limitation of actions
The counterclaims were not statute-barred because they were founded on trust, not on contract or recovery of land; section 20(1) of the Limitation of Actions Act excludes actions by a beneficiary under a trust from the prescribed limitation periods.
The trial court correctly characterized the counterclaims as founded on an implied/constructive trust arising from the parties' conduct and contributions. Section 20(1) provides that no limitation period applies to an action by a beneficiary under a trust, and the Trustees Act definition extends to implied and constructive trusts. The Court found the analysis correct and that justice favoured sustaining the claims.
Competency of pleadings and standing
Although the appellant sued on an unconfirmed grant and the 1st – 6th respondents' counterclaim lacked a verifying affidavit, the trial court properly invoked Article 159(2)(d) and the oxygen principles to overlook these infractions in this uniquely protracted dispute.
Both sides violated mandatory procedural provisions. However, given the dispute's two-generation history, the absence of prejudice, and the equitable maxim that equity treats as done that which ought to be done, the trial judge's exercise of discretion to save the suit and counterclaim was proper and the appellate court would not interfere with it.
Existence of partnership and contributions
A partnership in acquiring the suit land existed between the appellant's father and the sleeping partners to the extent of their contributions: Kshs. 23,000 by the 7th respondent's deceased father (entitling him to 80 acres) and Kshs. 35,000 jointly by the 4th – 6th respondents' deceased fathers (equating to 121.7 acres); the claim that each of the three contributed Kshs. 40,000 was uncorroborated.
Oral partnerships can be proved by conduct; the agreement of 27th August 1974, retired Justice Tunoi's unchallenged affidavit and evidence, the land agent's report, and the payment vouchers established the contributions. The refund claim failed because the refund clause only applied if the farm was not obtained, the Kshs. 18,900 in vouchers had undisclosed purposes, and the vendor was estopped from enforcing refund after obtaining the land. The pro rata distribution followed the trial court's calculation.
Trust over the suit land
The appellant's father held the suit land in trust for himself and the 4th, 5th, 6th and 7th respondents to the extent of their contributions; the trust is an overriding interest under section 28(b) of the Land Registration Act.
Applying the Supreme Court's decision in Shah v. Mombasa Bricks & Tiles, constructive trusts arise by operation of law to prevent unjust enrichment and, under Article 24, limit property rights notwithstanding the indefeasibility of registered title. The registered owner registered himself to the exclusion of contributing purchasers who were never refunded; equity imposed a trust whenever justice and good conscience required it.
Fraud pleaded and proved
Fraud was pleaded with particulars in the 7th respondent's counterclaim and proved: the appellant's father obtained sole registration by concealing the other purchasers' contributions, and his registration pending pending litigation also offended lis pendens.
Fraud must be strictly pleaded and proved to a standard above mere balance of probabilities. The particulars were set out in the pleading; the documentary trail (the land agent's report, Land Limited's letter of 10th July 1980, the registration history) demonstrated concealment of the co-purchasers and registration in isolation while ownership was hotly contested. Title was therefore impeachable under section 26 of the Land Registration Act.
Legal principles established
#- On a first appeal, the Court of Appeal must re-evaluate, re-assess and re-analyse the evidence on the record and determine whether the trial judge's conclusions should stand, while making due allowance for not having seen or heard the witnesses.
- A party seeking to amend a notice of cross appeal must first obtain leave of the court before lodging the amended document; filing it without leave is irregular and the oxygen principles and Article 159 cannot cure it.
- A notice of cross appeal must be filed within the timelines fixed by rule 95(2) of the Court of Appeal Rules; a notice filed outside those timelines is irregular and incompetent and will be struck out.
- Parties are bound by their pleadings and cannot introduce fresh evidence or new claims through submissions on appeal; the appellate court will confine itself to the facts and evidence recorded at trial.
- Documents and proceedings tendered in evidence without objection and without an application for cross-examination cannot be attacked for the first time on appeal; uncontroverted documents retain their probative value.
- A trust (including a constructive or resulting trust arising from conduct and contribution to the purchase price) is an overriding interest under section 28 of the Land Registration Act that can defeat an otherwise absolute registered title.
- A refund clause in a land purchase agreement takes effect only on the failure of the purchase; where the land was obtained, the vendor is estopped from enforcing the refund, and a unilateral variation of the agreed refund sum is of no effect.
Court orders
#- 1.The appeal is dismissed
- 2.The cross appeal dated 18th December 2023 by the 4th, 5th and 6th respondents is struck out as improperly on record (amended notice of cross appeal filed without leave)
- 3.The 7th respondent's notice of cross appeal dated 10th February 2025 is struck out as irregular and incompetent
- 4.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Kitale
- Kitale ELC Suit No. 34 of 2017
- Jurisdiction invoked
- First appellate jurisdiction over the Environment and Land Court (Constitution of Kenya, Article 164(3) framework; appeal from the judgment of Nyagaka, J. dated 5th October 2023)
- Consolidated with
- Kitale ELC Suit No. 34 of 2017 was consolidated with Kitale ELC Petition No. 8 of 2016 for purposes of taking evidence at trial (the Petition is the subject of Eldoret Civil Appeal No. E089 of 2023, not this appeal)
Relief refused
#The appellant's prayer to set aside the trial judgment and dismiss the respondents' counterclaims
The appeal lacked merit on res judicata, limitation, competency of pleadings, partnership, trust and fraud
The respondents' proposal to redistribute the acreage (128.5 acres each to the appellant, 1st, 3rd and 4th respondents; 80 acres to the 7th respondent; 48.5 acres to the appellant) and to claim reimbursement and lease moneys
Introduced for the first time on appeal, not pleaded at trial; parties are bound by their pleadings; no notice of appeal filed on that issue
The 7th respondent's cross appeal seeking 100 acres each or alternatively 203.2 acres and costs
Notice of cross appeal not filed within the timelines in rule 95(2) of the Court of Appeal Rules; irregular and incompetent
Costs
Each party to bear its own costs: "As earlier noted in this judgement the cross appeals also fail and this is a proper case where each party should bear its 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.
In the end, we are satisfied to hold that the present appeal lacks merit. No suficient reasons have been demonstrated as to establish why we should interfere with the learned Judge's analysis and findings. Accordingly, the appeal is hereby dismissed.
As earlier noted in this judgement the cross appeals also fail and this is a proper case where each party should bear its own costs. Orders accordingly.
we find that the appellant held the suit land in trust for himself and the 4th, 5th, 6th and 7th respondents jointly to the extent of their contributions; an overriding interest as set out in section 28 (b) of the Land Registration Act.
A constructive trust could be imported into a land sale agreement to defeat a registered title.
Allegations of fraud must be strictly proved: although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.
parties are bound by their pleadings and cannot elect to depart from them. Evidently, the respondents were introducing fresh evidence guised as submissions that were not pleaded before the trial court.
our inescapable conclusion is that the notice of cross appeal dated 10th February 2025 is irregular and incompetent. This settles any issues arising from the cross appeals as it is our finding that they were irregularly filed and we hereby strike them out.
we find that the amended notice of cross appeal was filed irregularly and unlawfully.
Issues in the judgment
#The judgment does not state the appeal number of this Court of Appeal appeal itself; only the trial court case number (Kitale ELC Suit No. 34 of 2017) and a related appeal (Eldoret Civil Appeal No. E089 of 2023) are identified.
Internal inconsistency in dates regarding the consent quashed in Nakuru HC Misc. No. 10 of 1980: the judgment elsewhere records the relevant Land Control Board consent as dated 19th August 1980 (and an earlier one of 13th March 1980), but states the applicant sought to quash a consent 'given on 13th March 1980'.
The date of filing of Kakamega HCCC No. 43 of 1978 is given as a 1978 plaint, yet the case is described in the pleadings summary as 'Kitale HCCC No. 89 of 1997 (formerly Kakamega HCCC No. 43 of 1978)', and other passages refer to 'Kitale HCCC No. 80 of 1997' and 'Kitale HCCC No. 89 of 1997' interchangeably.
Discrepancy between the parties' submissions on the purchase price (Kshs. 251,000.00 with a deposit of Kshs. 43,000.00) and the documentary record adopted by the court (consideration of Kshs. 215,000.00 with a 20% deposit of Kshs. 43,000.00).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Koross (Suing as the Administrator of the Estate of the Late Elijah CA Koross) v Kiptoo & 6 others (Civil Appeal E088 of 2023) [2025] KECA 1031 (KLR)", Case Analysis (2025). Not stated in the judgment (appeal against Kitale ELC Suit No. 34 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1031/eng@2025-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.