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ELCPartially AllowedOriginating Summons dated 17th February 2017 (Kericho)· [2018] KEELC 3883 (KLR)

Robert K Koech & 2 others v William Kipkorir Mutai [2018] KEELC 3883 (KLR)

Environment and Land Court
20 March 2018
JOJ.M. Onyango
1,948 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kericho court ruled that family members who paid for land registered in someone else's name can get their shares back.

What this practically means

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Executive summary

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The Plaintiffs (also referred to as Applicants) brought an Originating Summons dated 17th February 2017 against the Respondent, the registered proprietor of KERICHO/SOSIOT/1530 measuring about 0.8 hectares, seeking a declaration that he holds 2 acres in trust for them, registration as owners of 2 acres, or alternatively that the Respondent's title to 2 acres was extinguished by adverse possession. The Plaintiffs averred that in 2001 they and others jointly purchased the land from David Yegon, contributing varying sums totalling over Kshs.1 million; that two buyers' shares were refunded or traded to the Respondent; that the Respondent was appointed to manage the tea farm and distribute income proportionately; and that after payments ceased in 2006, meetings resolved the land be sub-divided according to contributions, but the Respondent instead registered the whole parcel in his sole name. The Respondent denied the contributions, claiming a different parcel was purchased, and denied the Plaintiffs' occupation. The suit was canvassed by affidavit evidence and written submissions by agreement. The court framed four issues and found the Plaintiffs proved their contributions to the bulk of the purchase price, unrebutted by the Respondent, and that the affidavit evidence inferred a constructive trust in their favour, applying N.W.K v J.K.M & Another. The court was satisfied the case was proved on a balance of probabilities and invoked Article 159(2) to cure drafting imprecision. Judgment was entered declaring the Respondent trustee over 1.86 acres, ordering that portion to be curved out and registered per contributions, with mutation and transfer forms to be signed within 45 days (failing which the Deputy Registrar to sign), and costs to the Plaintiffs. The alternative adverse possession prayer and the 2-acre claim were not granted as such.

Key legal issues

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01

Whether the plaintiffs contributed to the purchase of KERICHO/SOSIOT/1530

Holding

The plaintiffs proved they contributed to the bulk of the purchase price and are entitled to their proportionate share

Reasoning

The applicants set out their respective contributions in the supporting affidavit. The respondent merely denied the contributions and claimed the land purchased jointly was a different parcel, but did not sufficiently rebut the affidavit evidence. The court therefore found the contributions proved on a balance of probabilities.

p. 3
02

Whether the Respondent holds the title in trust for the Applicants

Holding

Yes - the affidavit evidence led to an inference of a constructive trust in favour of the applicants, based on their contributions and the meetings held between 2002 and 2006 on sharing the land

Reasoning

The court applied the principles in N.W.K v J.K.M & Another on resulting and constructive trusts, including common intention and detriment. It found the applicants had explained in detail how the property was acquired and the respondent's role as manager, discussed at meetings between 2002 and 2006, supporting a constructive trust.

p. 4
03

Whether the Applicants are entitled to the property by adverse possession

Holding

Not determined as an independent ground; relief was granted on the trust claim instead, over the 1.86 acres the applicants had exclusively used and cultivated

Reasoning

Counsel for the applicants submitted the applicants had been in exclusive, open, continuous and uninterrupted occupation since 2002 for more than 12 years. The court noted the applicants had been in exclusive use and cultivation of 1.86 acres since 2001, but the judgment rests on the constructive trust finding rather than an express finding extinguishing title by adverse possession.

p. 2
04

Whether the suit could properly be canvassed by affidavit evidence and written submissions rather than viva voce evidence

Holding

Yes - the parties had agreed to proceed by affidavit evidence and written submissions, and any objection should have been raised at the appropriate time

Reasoning

The respondent's counsel objected that submissions had been filed in respect of the O.S rather than the injunction application and that the matter should have been heard viva voce. The court agreed viva voce evidence would have been preferable but held that since the parties had by default chosen affidavit evidence, the clock could not be reversed, aided by Article 159(2).

p. 4

Legal principles established

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  • Where property is purchased in one party's name but both parties contribute to the purchase price, the other party acquires an interest under a resulting trust proportionate to their contribution, or may claim under a constructive trust
  • A constructive trust arises where there was a common intention that both parties should have a beneficial interest and the claimant acted to his detriment in that belief

Court orders

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  1. 1.The Respondent, registered proprietor of KERICHO/SOSIOT/1530 measuring 0.8 hectares, is declared trustee for the Defendants in respect of 1.86 acres thereof
  2. 2.The said 1.86 acres be curved out of the suit property and registered in the names of each of the Applicants according to their respective contributions
  3. 3.The Defendant to sign mutation forms and transfer forms within 45 days, failing which the Deputy Registrar of the court is authorized to sign the same
  4. 4.The costs of the suit to be borne by the Defendant
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (unspecified in judgment); Article 159(2) of the Constitution invoked on substantive justice

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, "Robert K Koech & 2 others v William Kipkorir Mutai [2018] KEELC 3883 (KLR)", Case Analysis (2018). Originating Summons dated 17th February 2017 (Kericho). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3883/eng@2018-03-20

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