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Court of AppealDismissedNot stated in the judgment

Samoei v Samoei (Suing on Behalf of the Estate of the Late Joseph Kisorio Samoei) & 3 others (Civil Appeal E123 of 2021) [2026] KECA 1200 (KLR)

Court of Appeal of Kenya
26 June 2026
4,732 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed a brother holds family land in trust for his siblings, even though the title document bears his name only.

What this practically means

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Executive summary

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This is a first appeal from the Environment and Land Court at Kitale in a family land dispute between siblings, sons of the late Kipsongok Arap Chepkulei. The respondents claimed their father sold family land in Lessos between 1969 and 1971 and entrusted the proceeds to the appellant to purchase land in Kitale for the whole family; the appellant instead registered the resulting 5-acre parcel in his own name. The trial court declared that the appellant held the suit property in trust for the family, cancelled his title, ordered registration in the name of the deceased father's estate, allowed burial of the late 1st plaintiff on the land, and awarded costs to the respondents. The appellant raised ten grounds, contending that the trust claim was unproved, that the evidence was hearsay and contradictory, that no written agreement existed under section 3(3) of the Law of Contract Act, and that the registration of land in a deceased person's name was a nullity. The Court of Appeal dismissed the appeal. It held that section 3(4) of the Law of Contract Act excludes resulting, implied and constructive trusts from the writing requirement; that on the evidence the appellant held the land in trust, with the remedy properly characterised as a constructive trust; that the contradictions in the respondents' evidence were peripheral and the hearsay was not relied upon; and that although the order registering the land in a deceased person's name was technically irregular, it was overtaken by events and caused no substantial injustice. Each party was directed to bear its own costs of the appeal in the interest of family harmony, while the trial court's costs order remained undisturbed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondents proved, on a balance of probabilities, that the appellant held the suit property in trust for the family
  2. 2.Whether the trial court erred in its analysis of the evidence, particularly regarding contradictions and hearsay
  3. 3.Whether the reliefs granted, including cancellation of title and registration in the name of a deceased person, were proper

Key legal issues

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01

Whether the claim based on customary family arrangements required compliance with section 3(3) of the Law of Contract Act

Holding

No; section 3(4) expressly excludes resulting, implied and constructive trusts from the writing requirement

Reasoning

The claim was not a simple commercial transaction but a family dispute arising from customary arrangements. Section 3(4) of the Law of Contract Act expressly provides that subsection (3) shall not affect the creation or operation of a resulting, implied or constructive trust. Accordingly, the absence of a written sale agreement for the Lessos land did not defeat the respondents' trust claim.

p. 5
02

Whether a trust was proved on the facts

Holding

Yes; the evidence formed a complete chain showing the appellant held the land in trust, engaging a constructive trust rather than a customary trust

Reasoning

The family land in Lessos was sold and the proceeds entrusted to the appellant and Shadrack Kemboi to buy land in Kitale. The occupation of the land by the appellant's father and siblings (confirmed by the appellant's own witness DW2), the uncontroverted occupation by the 1st respondent's family since 1980, and the handing over of family money formed a complete chain. Though the conflict begins with family land, the remedy shifts to a constructive trust because the asset was converted to the appellant's property.

p. 7
03

Whether contradictions and hearsay in the respondents' evidence vitiated the trial court's findings

Holding

No; the contradictions were peripheral and the trial court relied on direct and circumstantial evidence, not hearsay

Reasoning

Inconsistencies about who received the money and precise dates were peripheral; the core fact that family money was used to acquire the land was consistently testified to by multiple witnesses, including the appellant's own witness DW3. PW7's evidence of what his mother told him was hearsay, but the trial court did not rely on it, there being direct evidence from PW4 who witnessed the handing over of the money.

p. 8
04

Whether the order cancelling the appellant's title and registering the land in the name of the deceased was proper

Holding

The order was technically irregular but did not vitiate the judgment, having been overtaken by events and causing no substantial injustice

Reasoning

Following Dominic Musei Ikombo vs Kyule Makau, a deceased person cannot hold proprietary rights in land. The land was never registered in the deceased's name, so the order could not restore the status quo ante. The appropriate order would have been cancellation of the title and sharing among the deceased's children. However, the error was not traceable to a ground of appeal, the body had been buried and the estate was in succession proceedings, so no injustice resulted.

p. 8

Legal principles established

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  • The requirement of a written and attested agreement under section 3(3) of the Law of Contract Act does not apply to the creation or operation of a resulting, implied or constructive trust, including in family land disputes arising from customary arrangements
  • Where family land is sold and the proceeds entrusted to one family member to purchase alternative land for the family, and that member registers the land in his own name, the court may impose a constructive trust even though the claim begins with customary/family land
  • Minor or peripheral contradictions in a witness's evidence do not render it untrustworthy where the core fact is consistently testified to by multiple witnesses; a trial court's acceptance of such evidence, having observed demeanour, will not be disturbed on appeal
  • On a first appeal, the Court's mandate is to re-evaluate the evidence on record and draw its own conclusions while bearing in mind that it did not see or hear the witnesses
  • A deceased person cannot hold proprietary rights or any other interest in land; an order directing registration of land in the name of a deceased person is technically irregular, but the error does not vitiate the judgment where the core finding is sound and no substantial injustice is caused

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The finding that the appellant held the suit property in trust for the family of the late Kipsongok Arap Chepkulei is affirmed
  3. 3.Each party to bear their own costs of the appeal
  4. 4.The order on costs issued by the trial court remains undisturbed
  5. 5.The estate of the deceased shall be distributed in accordance with the finding that the appellant held the title in trust for the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court at Kitale
Not stated in the judgment
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (not expressly specified in the judgment)

Relief refused

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The appellant's prayer to allow the appeal, set aside the ELC judgment and grant the counterclaim for eviction

The trial court correctly found that the appellant held the land in trust for the family; the grounds of appeal lacked merit

p. 8

Costs

Given that the parties are close relatives, each party to bear their own costs of the appeal; the trial court's costs order shall remain undisturbed

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The requirement under section 3(3) of the Law of Contract Act for a written and attested agreement for the disposition of an interest in land does not apply to the creation or operation of a resulting, implied or constructive trust.
p. 5Law of Contract Act section 3(3) and trusts
The occupation, the evidence on the sale of the family land in Lessos and the giving of the money to the appellant form a complete chain that demonstrates that the appellant is holding the suit land in trust.
p. 7Proof of trust in family land dispute
As this is a first appeal, our mandate as restated in a long chain of authorities from this Court is to reevaluate the evidence on record and draw our own conclusions, while bearing in mind that unlike the trial court we did not have the advantage of seeing and hearing the witnesses.
p. 3Duty of a first appellate court
In the circumstances, whereas the order was technically irregular, it has been overtaken by events, and in any event, no substantial injustice or prejudice has been caused to any of the parties.
p. 8Irregular relief overtaken by events
Given that the parties are close relatives, and in the interest of family harmony, we direct the parties to bear their own costs of this appeal. However, we find no reason for interfering with the order on costs issued by the trial court. As such, the order on costs issued by the trial Judge shall remain undisturbed.
p. 8Final orders and costs
Therefore, the appellant’s grounds of appeal lack merit, and the appeal is dismissed.
p. 8Disposition

Issues in the judgment

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minor

Counsel for the appellant argued that the trial court erred in ordering registration in the name of a deceased person, but the court noted this argument was not traceable to any of the ten grounds of appeal, yet went on to consider it

minor

The judgment cites 'Gachuma Gacheru vs. Maina Kabuchwa' with two different citations ([2016] eKLR in submissions and [2016] KECA 526 (KLR) in the court's analysis), and likewise 'Dominic Musei Ikombo vs. Kyule Makau' appears as both [2019] eKLR and [2019] KECA 482 (KLR)

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, "Samoei v Samoei (Suing on Behalf of the Estate of the Late Joseph Kisorio Samoei) & 3 others (Civil Appeal E123 of 2021) [2026] KECA 1200 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1200/eng@2026-06-26

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