Titus Kuto Kipungar v Selina Tamining & 3 others [2016] KEELC 342 (KLR)
The bottom line
#A Kenyan court cancelled a landowner's title and split the land equally because his family had occupied it for over 50 years.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendants invaded the suitland in 2010
No; the plaintiff's claim of a 2010 invasion was false - the defendants were on the land before the plaintiff was born in 1978
The plaintiff asserted in evidence in chief that the defendants invaded in 2010, but on cross-examination he conceded he was born in 1978 and found the defendants already on the land. Documents dating back to 1968, including a suit by the first defendant's late husband against the plaintiff and two others in 2005, contradicted the plaintiff's assertion. The court found he lied on oath and dismissed the invasion claim.
Whether the defendants are entitled to remain on the suitland
Yes; credible evidence showed the first defendant's husband had occupied the land since the 1960s and no eviction action was brought during the deceased's lifetime
The court accepted evidence of continuous occupation from the 1960s, including the 1968 suit by Samuel Kukwai against intruders and correspondence with the Resident Magistrate in 1970. No suit for eviction was filed against the Kukwai family during the deceased's lifetime. The dispute only arose after the deceased registered himself as sole owner and succession was effected by transmission to the plaintiff.
Whether the plaintiff holds the suitland in trust for himself and the defendants
Yes; a trust was implied because the evidence showed the deceased's brother occupied the land from the early 1960s and the deceased registered himself as sole owner without his brother's knowledge in 1979
Although the law never presumes a trust except in absolute necessity, the court found credible evidence of the common intention that the deceased and his brother were to live together on the land. The brother had occupied and defended the land in his own name, registered a caution in 2004, and the plaintiff's registration occurred the following year without evidence of how the caution was removed. The court found the transaction clandestine and implied a trust.
Legal principles established
#- A trust will not be implied except in cases of absolute necessity; the intention of the parties to create a trust must be clearly determined before a trust will be implied
Court orders
#- 1.Plaintiff's suit dismissed with costs to the defendants
- 2.The trust by the plaintiff terminated
- 3.Title held by the plaintiff to be cancelled and new separate titles issued in favour of the plaintiff and the defendants in equal shares
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to title to and occupation of land (Environment and Land Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Titus Kuto Kipungar v Selina Tamining & 3 others [2016] KEELC 342 (KLR)", Case Analysis (2016). Land Case No. 181 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/342/eng@2016-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.