Mode of Track & another v Daniel Livoi Gideon [2019] KEELC 3372 (KLR)
The bottom line
#A Bungoma court ruled that a brother holding family land as registered owner was actually a trustee and had to share it equally among beneficiaries.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata
The plea fails because trust was not and could not have been an issue in the former proceedings; the Tribunal acted out of jurisdiction over registered land and the High Court appeal concerned a Tribunal award, not a trust declaration
The defendant pleaded that Bungoma High Court Civil Appeal No 64 of 2007 had determined the matter. That appeal concerned the setting aside of a Tongaren Land Disputes Tribunal award over registered land, which Mukunya J set aside for want of jurisdiction. Since an LDT could not determine a trust claim, the issue in the present suit (a declaration of trust) was never directly and substantially in issue in the former suit, so the four conditions for res judicata are not met.
Whether the defendant holds the suit land in trust
Yes. The court found that the suit land was registered in the defendant's name to hold in trust for the plaintiff and his other siblings, based on the deceased's prior registration, the unexplained Kshs 45,000 consideration entry, the plaintiff's payment of the Settlement Fund Trustee loan, and the deceased's 15th April 1996 letter
The court required sufficient evidence before implying a trust. It found: the land was first registered to the deceased, not the defendant; the Green Card showed a transfer at consideration of Kshs 45,000 which the defendant never pleaded as a purchase, indicating fraud; the plaintiff produced a banker's order showing he repaid the Settlement Fund loan; and the deceased's 1996 document, thumb-printed and witnessed by the defendant, expressed the sharing scheme and was unrebutted. Together these established the trust.
Legal principles established
#- Res judicata under Section 7 of the Civil Procedure Act requires that the issue be directly and substantially in issue in a former suit between the same parties or their privies, litigating under the same title, heard and finally decided by a competent court
- Courts will not presume a trust except in a case of absolute necessity; the intention to create a trust must be clearly determined
- A Land Disputes Tribunal under the repealed Land Disputes Tribunal Act had no jurisdiction to determine a claim to land by way of trust
Court orders
#- 1.The Land Registrar to forthwith cancel the titles to land parcels NO BUNGOMA/KAMAKOIWA/2045, 2046 and 2047 and the same to revert to BUNGOMA/KAMAKOIWA/577
- 2.A declaration that the defendant holds land parcel NO BUNGOMA/KAMAKOIWA/577 in trust for himself, the plaintiff and other beneficiaries
- 3.Determination of the trust: the plaintiff to be registered as proprietor of 7 acres out of land parcel NO BUNGOMA/KAMAKOIWA/577
- 4.The defendant to be registered as proprietor of 7 acres out of land parcel NO BUNGOMA/KAMAKOIWA/577
- 5.The remaining portion to be registered in the names of the plaintiff TO HOLD IN TRUST for ROIDA (JOY) JENDEKA MUDULIA and BENNAH GWAMBEZA to be shared equally
- 6.Each party to meet their own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to title to and trust over land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mode of Track & another v Daniel Livoi Gideon [2019] KEELC 3372 (KLR)", Case Analysis (2019). Bungoma Environment and Land Court Suit (filed 29th June 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3372/eng@2019-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.