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ELCPartially AllowedNot stated in the judgment· [2018] KEELC 412 (KLR)

Chelimo Rotich Kaino v Chemorio Christopher [2018] KEELC 412 (KLR)

Environment and Land Court
21 December 2018
AOA. Ombwayo
2,519 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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An Eldoret court ruled a registered landowner actually held half his land in trust for a long-term occupier, who could not be evicted.

What this practically means

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Executive summary

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The plaintiff sued as the absolute registered owner of MOIBEN/MOIBEN BLOCK 3/KIPSILIAT/182 (approx. 17.54 Ha), alleging the defendant was a permitted occupant of about 2 acres who, after being asked to vacate in 2009, forcibly occupied around 10 acres in March 2013. He sought a permanent injunction and eviction. The defendant denied the claim and counter-claimed that the land was jointly purchased in 1971 (defendant paying Kshs.4,000, plaintiff Kshs.3,000), that the plaintiff subdivided it into two equal portions of 21 acres each in 1984 and put him in possession, and sought a declaration that the plaintiff was registered as trustee, a vesting order, transfer of one half share, extension of Land Control Board consent and execution of transfer documents. At the hearing, the plaintiff produced his title deed and plot allocation card but could not explain the defendant's decades-long occupation. Defence witnesses, including the Assistant Chief and the plaintiff's own son, corroborated joint purchase, equal subdivision and shared occupation since 1984. The court held that the subdivision into equal shares and placing the defendant in possession from 1986 until suit implied a constructive trust; the plaintiff was registered as trustee for the defendant in equal shares. The counterclaim succeeded: a declaration of trust and vesting order issued, the Deputy Registrar empowered to execute transfer documents, and the defendant to be registered as proprietor of 21 acres. The plaintiff's claim was dismissed with costs, and costs of the counterclaim awarded to the defendant.

Key legal issues

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01

Whether an implied or constructive trust arose over the suit land

Holding

Yes. The court held the plaintiff holds 21 acres in trust for the defendant.

Reasoning

The court weighed the conflicting accounts: the plaintiff alleged temporary permissive occupation; the defendant alleged joint purchase and allocation of his share. The plaintiff's failure to explain the 27-year delay in seeking eviction, the equal subdivision, the defendant's continuous possession since 1984/1986, and corroborating testimony of the Assistant Chief and neighbours led the court to find the plaintiff was registered as trustee for the defendant.

p. 3
02

Whether the defendant's defence of joint purchase was credible

Holding

The court believed the defendant paid part of the purchase price, which explained his occupation.

Reasoning

The court accepted the defendant's explanation that though not a member of the society he paid for 2 acres through the plaintiff. The testimony of the plaintiff's own son that the parties 'walked together', shared proceeds of a bull and occupied equal portions corroborated a shared interest rather than mere hospitality.

p. 3

Legal principles established

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  • Subdividing land into equal shares and putting another party in possession of one half implies that the plaintiff was registered as trustee for that party, giving rise to an implied or constructive trust
  • Unexplained long occupation of part of a registered proprietor's land weighs against a claim of mere temporary permissive occupation

Court orders

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  1. 1.Declaration that the plaintiff was registered in his own interest and as trustee for the defendant in equal shares
  2. 2.Vesting order compelling the plaintiff to transfer one half share of 21 acres in MOIBEN/MOIBEN BLOCK 3 (KAPSILIAT)/182 to the defendant
  3. 3.The Deputy Registrar to execute the necessary transfer documents in place of the plaintiff
  4. 4.The defendant to be registered as proprietor of one half share, being twenty-one (21) acres out of MOIBEN/MOIBEN BLOCK 3 (KAPSILIAT)/182 measuring approximately 17.54 Ha
  5. 5.Costs of the counterclaim to the defendant
  6. 6.Plaintiff's claim dismissed with costs
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to ownership and occupation of land (not expressly invoked in the judgment)

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, "Chelimo Rotich Kaino v Chemorio Christopher [2018] KEELC 412 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/412/eng@2018-12-21

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