Joseph Ndoyio Kaapei & 2 others v Simon Swakei Kaapei & another [2019] KEELC 2448 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether a trust was created over the suit land
An implied trust was created; the Plaintiffs, as family members, proved on a balance of probability that the land registered in the 1st Defendant's name is ancestral family land held in trust for them.
The court accepted the Plaintiffs' testimony and that of their witness as truthful. The suit land was the undisputed ancestral home of all parties who all lived on it. In conformity with Maasai culture the eldest son was appointed to register the land for the family's benefit. Registration in his name alone therefore created an implied trust; claiming it absolutely was an act of fraud and greed to disinherit his siblings.
Whether the registration of the suit land in the 1st Defendant's name was fraudulent
The court held that the 1st Defendant's claim to absolute ownership amounted to fraud and greed, breaching his fiduciary duties as trustee.
Relying on Mumo v Makau, the court required proof of trust by evidence. Once it found the parties occupied the land as ancestral family land, the 1st Defendant's assertion of absolute ownership contradicted the family arrangement under which he was registered, and the court characterised that assertion as fraudulent conduct disinheriting his siblings.
Legal principles established
#- A claim of trust is a question of fact that must be proved by evidence
- Registration as absolute owner does not extinguish a trustee's duties where an implied family trust exists
Court orders
#- 1.A declaration that the Plaintiffs are each entitled to a 1/8th share of parcel No. 87 Olosakwana Adjudication Section and parcel No. 9 Olosakwana Adjudication Section held in trust for them by the Defendants
- 2.An order directing the Defendants to excise, surrender and transfer 1/8th for each Plaintiff of Land Parcel No. 87 and Parcel No. 9 Olosakwana Adjudication Section and cause the same to be reflected in the Adjudication register within 30 days of the judgment
- 3.Each party shall bear its own costs in the suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over disputes relating to land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Ndoyio Kaapei & 2 others v Simon Swakei Kaapei & another [2019] KEELC 2448 (KLR)", Case Analysis (2019). ELC Cause No. 511 of 2017 (formerly Kisii ELC No. 1243 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2448/eng@2019-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.