Enkutoto Eco Tourism Trust v Ben Topoika Kipeno [2019] KEELC 2286 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled the trust deed, not verbal claims, proves land ownership and trust membership, and ordered the occupant to vacate.
What this practically means
#Executive summary
#Key legal issues
#Ownership of Land Parcel Trans Mara/Kimintet 'D'/479
The original seven allottees named in the letter dated 13/11/1995, not the ten persons later listed in the letter dated 17/8/1998 who constituted themselves into the trust, were the owners; the Defendant was not among the initial allottees.
Two letters from the District Land Adjudication Officer showed discrepant lists of owners - seven in the 1995 letter and ten in the 1998 letter. The court found the original seven members were the owners and that the Defendant was not among the initial allottees. The Plaintiff's claim that the name 'Ben Topoika Neusiet' was not that of the Defendant was accepted on the evidence.
Whether the Defendant was a member of the Enkutoto Eco Tourism Trust
The Defendant was not a member of the trust; the deed of declaration of trust dated 18/1/01 excluded him and, on its registration, his status was that of an employee.
Membership is evidenced by the deed of declaration of trust. Two deeds existed; in the deed dated 18/1/01 the Defendant was not named as a member. With no other evidence establishing membership, the court found the Defendant was not a member of the trust and treated him as an employee who was required to vacate on termination.
Damages and the Defendant's counterclaim
Damages were not proved and the counterclaim was dismissed for want of proof.
The Plaintiff led no evidence of the damages it would suffer, and the Defendant's counterclaim allegations of fraud and exclusion from the trust were not proved. Both the claim for general damages and the counterclaim therefore failed.
Legal principles established
#- Membership of a trust is to be established from the constituent documents, in particular the deed of declaration of trust, and the registered deed binds the parties as to who are members.
- The civil standard of proof in land disputes is on a balance of probabilities.
Court orders
#- 1.The Defendant to vacate the trust land within 90 days of the judgment, and in default the Plaintiff be at liberty to apply
- 2.Costs of the suit awarded to the Plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (land and environment disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Enkutoto Eco Tourism Trust v Ben Topoika Kipeno [2019] KEELC 2286 (KLR)", Case Analysis (2019). ELC Cause No. 62 of 2017 (Formerly Nakuru ELC No. 416 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2286/eng@2019-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.