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ELCDismissedKericho ELC (not specified in judgment)· [2018] KEELC 1970 (KLR)

Andrew Kipkoech Bon & 2 others v Elizabeth Korir [2018] KEELC 1970 (KLR)

Environment and Land Court
31 July 2018
1,604 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 ruled that being the registered land owner does not defeat family customary trusts, dismissing an eviction attempt and ordering half the land transferred to the widow.

What this practically means

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Executive summary

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By a plaint dated 10th June 2015, three siblings sued for eviction of the defendant from LR No. Kericho/Kapsuser/61, together with general damages and costs. The plaintiffs, who derived title through transmission from their late father Kibon Cheriro following a grant in Kericho HC Succession Cause No. 235 of 2006, alleged the defendant was a trespasser. The defendant, widow of the plaintiffs' paternal uncle Daniel Korir and married in 1975, denied trespass and testified that the land was ancestral land of Arap Bon. Defence witnesses, including participants in the land adjudication, explained that Kibon Cheriro was registered as sole proprietor only because his brother Kipkorir Bon had died before adjudication, on the understanding that he would hold the land in trust for his late brother's children; clan minutes of 14/05/2015 supported this. The court framed four issues and, invoking Odd Jobs v Mubia, considered the unpleaded customary trust. Relying on section 25(2) of the Land Registration Act and section 28 (trusts including customary trusts as overriding interests), and on Ralph Kivuti Njoka v Jesse Nyaga Karuagi, it held that registration does not extinguish trust duties. It found the plaintiffs hold the land in trust for the defendant, declined to treat her as a trespasser given her long occupation and her late husband's beneficial entitlement, and ordered the plaintiffs to sub-divide and transfer half the land to the defendant on behalf of the estate of Kipkorir Bon. The suit was dismissed with costs to the defendant.

Key legal issues

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01

Whether Kibon Cheriro held the suit land in trust for the family of Kipkorir Bon under a customary trust

Holding

Yes. The land was ancestral land of Arap Bon; Kibon Cheriro was registered as sole proprietor only because his brother Kipkorir Bon had died before adjudication, and he thereby held it in trust for his late brother's family

Reasoning

Witnesses DW3 and DW4 participated in the land adjudication and explained that Kibon Cheriro was registered as proprietor because his brother Kipkorir Bon had died and his mother was very old. Clan minutes dated 14/05/2015 corroborated that the land is ancestral. The court held that registration under the Land Registration Act does not relieve a proprietor of trust duties, and section 28 recognises customary trusts as overriding interests.

p. 3
02

Whether the defendant is a trespasser liable to eviction

Holding

No. She has long been in occupation, planted 4 acres of tea, and her late husband was beneficially entitled as a grandson of Arap Bon

Reasoning

The defendant testified she was married in 1975 and moved onto the suit land, where she lived harmoniously with the plaintiffs' parents. The court found it unconscionable to treat her as a trespasser given her husband's beneficial entitlement and her long occupation and development of the land. The eviction order and damages were therefore not available.

p. 2
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Whether the court could determine the customary trust though not pleaded in the defence

Holding

Yes. Following Odd Jobs v Mubia, the court may decide an unpleaded issue left to it in the course of the trial

Reasoning

The court acknowledged the defence could have been better drafted but found that the evidence at trial raised an inference of customary trust. Relying on Odd Jobs v Mubia, it held that where the course of the trial leaves an unpleaded issue for the court's decision, the court may determine it. It then applied principles from Ralph Kivuti Njoka v Jesse Nyaga Karuagi on trusteeship despite registration.

p. 2

Legal principles established

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  • Registration of land in one's name does not relieve the proprietor of duties or obligations as a trustee, including customary trusts
  • Trusts, including customary trusts, are overriding interests affecting registered land without being noted on the register
  • A court may base its decision on an unpleaded issue if it appears from the course of the trial that the issue was left to the court to decide

Court orders

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  1. 1.Finding and holding that the plaintiffs hold the suit property in trust for the defendant
  2. 2.The plaintiffs to sub-divide and transfer half of the suit land to the Defendant on behalf of the estate of the late Kipkorir Bon
  3. 3.The suit is dismissed with costs to the defendant
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (plaint dated 10th June 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, "Andrew Kipkoech Bon & 2 others v Elizabeth Korir [2018] KEELC 1970 (KLR)", Case Analysis (2018). Kericho ELC (not specified in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1970/eng@2018-07-31

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