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ELCPartially AllowedLand Case No. 181 of 2013· [2016] KEELC 342 (KLR)

Titus Kuto Kipungar v Selina Tamining & 3 others [2016] KEELC 342 (KLR)

Environment and Land Court
7 November 2016
1,641 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The plaintiff, administrator of the estate of his late father Sangara Chepkati (the registered owner of LR West Pokot/Siyoi/263 since 1979), sued the four defendants for eviction and demolition of houses they had built on 1.87 acres of the suitland, alleging a 2010 invasion. The defendants, widow and sons of Samuel Kukwai (the deceased's younger brother), denied the invasion, filed a counterclaim seeking a declaration that the plaintiff holds the land in trust for himself and them, and asserted lawful occupation. The first defendant testified she was married to Samuel Kukwai in 1962 and lived on the land until her husband's death in 2013; Samuel had sued intruders in 1968, filed Kitale HCCC No. 131 of 2005 seeking cancellation of the plaintiff's title (remaining unheard at his death), and registered a caution in 2004 upon discovering the deceased had registered the land in his sole name. The plaintiff was discredited on cross-examination, conceding he found the defendants on the land before his birth in 1978. The court found no 2010 invasion, held the defendants entitled to remain, and - applying Mwangi Mbothu v Gachira Watimu - implied a trust from the evidence of the brothers' common intention and the clandestine removal of the caution before transmission of the title to the plaintiff. The plaintiff's suit was dismissed with costs to the defendants; the trust was terminated and the court ordered cancellation of the plaintiff's title and issuance of new separate titles in equal shares.

Key legal issues

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01

Whether the defendants invaded the suitland in 2010

Holding

No; the plaintiff's claim of a 2010 invasion was false - the defendants were on the land before the plaintiff was born in 1978

Reasoning

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.

p. 2
02

Whether the defendants are entitled to remain on the suitland

Holding

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

Reasoning

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.

p. 3
03

Whether the plaintiff holds the suitland in trust for himself and the defendants

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Plaintiff's suit dismissed with costs to the defendants
  2. 2.The trust by the plaintiff terminated
  3. 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

Authorities

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Cases cited (1)

  • Mwangi Mbothu & 9 Others -vs- Gachira Watimu & 9 Others
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

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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, "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.