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ELCPartially AllowedNot stated in judgment (plaint dated 2nd July, 2015)· [2018] KEELC 875 (KLR)

Gerald Kajogo Iguna v Muriungi Makembo Solomon [2018] KEELC 875 (KLR)

Environment and Land Court
14 November 2018
PNP.M. Njoroge
5,670 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~23 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Chuka ruled that a brother who registered family land in his own name holds it in trust and must return it to the rightful owner.

What this practically means

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Executive summary

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The plaintiff, a Kenyan working in the United States of America, sued his brother, the defendant, seeking a declaration that the defendant holds land parcel L.R. No. Tharaka/Nkondi 'A'/527 in trust for him, an order cancelling the defendant's registration and substituting the plaintiff's name, costs and interest. The plaintiff's case was that he bought the land from one M'Murithi, placed his mother and the defendant on it as caretakers when he left for further studies in 1986, and that the defendant took advantage of the 2009 adjudication process to have the land registered in his own name, later sub-dividing it. He obtained an order of inhibition on 2nd July 2015. The defendant, the sole witness for the defence, asserted that the land was family land given to his mother by M'Murithi, who transferred the suit parcel to him and parcel 526 to the plaintiff; he denied any trust or fraud. The parties framed competing issues, including constructive trust, fraud, unjust enrichment and res judicata, but the court reduced them to one principal question: whether the plaintiff proved his claim on a balance of probability. Relying on the plaintiff's corroborated evidence and noting that the defendant's uncorroborated testimony failed to controvert the particulars of trust and fraud, the court found for the plaintiff. It entered judgment declaring the defendant a trustee of the parcel and ordered cancellation of his registration and entry of the plaintiff as proprietor. The court declined to award costs despite the plaintiff's success, directing each party to bear their own costs in light of the parties' brotherhood and relative circumstances.

Key legal issues

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01

Whether the defendant holds the suit land in trust for the plaintiff

Holding

Yes - the plaintiff proved the trust on a balance of probability; the defendant registered himself during adjudication while the plaintiff was abroad

Reasoning

The plaintiff's evidence, corroborated by three witnesses whose veracity was not impeached in cross-examination, established that the plaintiff acquired the land from M'Murithi, placed his mother and the defendant on it as caretakers, and that the defendant took advantage of the plaintiff's absence in the USA during the 2009 adjudication to register himself. The defendant's uncorroborated evidence failed to controvert the particulars of trust and fraud.

p. 9
02

Whether fraud was proved to defeat the defendant's registered title

Holding

Yes - the fraudulent registration during adjudication was proved to the requisite standard, subjecting the registration to a trust

Reasoning

The court accepted the plaintiff's authorities that fraud must be strictly proved though not beyond reasonable doubt. The defendant's own account was inconsistent, giving garbled evidence about how the land was acquired, and he failed to impeach the plaintiff's evidence on fraud. The registration was therefore subject to the implied/constructive trust claimed under the applicable land registration provisions.

p. 9

Legal principles established

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  • Courts must base their determinations on the pleadings and evidence, not on submissions
  • Allegations of fraud must be strictly proved but the standard remains a balance of probabilities, albeit slightly higher
  • Trust is a question of fact to be proved by evidence

Court orders

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  1. 1.A declaration that the defendant holds L.R. No. THARAKA/NKONGI 'A'/527 in trust for the plaintiff
  2. 2.An order of cancellation of the defendant's name from the register of L.R. NO. THARAKA/NKONDI 'A'/527 and that the name of the plaintiff GERLD KAJOGO IGUNA be entered therein as proprietor
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 rule 4
  • Registered Land Act Cap 300 L.O.K. (now repealed)section 28
  • Land Registration Act No. 3 of 2012sections 25 and 28
  • Evidence Act (Cap 80)sections 107 and 109

Cases cited (5)

  • Suleman Bin Abdalla v Azzan Bin Zahor
    (1958) E.A 553
  • Mumo versus Makau
    (2002) I.E.A. 170
  • Mutsonga versus Nyati
    (1984) KLR 425
  • Masiaya Ole Ololie v William Simintei & Others
    CA No. 235 of 2011
  • Wilson Kenyega v Joel Ombwork
    CA No. 96 of 1998
On appeal from
null
null
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land dispute); suit commenced by plaint dated 2nd July, 2015

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, "Gerald Kajogo Iguna v Muriungi Makembo Solomon [2018] KEELC 875 (KLR)", Case Analysis (2018). Not stated in judgment (plaint dated 2nd July, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/875/eng@2018-11-14

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