Charles Makheti v Florence Mukanda Barasa [2020] KEELC 408 (KLR)
The bottom line
#A registered titleholder lost 10 acres of land in Kakamega because equity recognised a decades-old promise to the family who actually paid for and occupied the land.
What this practically means
#Executive summary
#Key legal issues
#Indefeasibility of registered title under the Land Registration Act
The plaintiff's registration as proprietor of Kakamega/Lumakanda/6348 was prima facie evidence of absolute ownership, but title may be challenged on grounds of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition
The court applied sections 24(a) and 26(1) of the Land Registration Act, which vest absolute ownership in the registered proprietor and shield title from challenge except on proven fraud/misrepresentation or where the title was acquired illegally, unprocedurally or through a corrupt scheme. It adopted the Makeri Nyangw'ra formulation that only two instances permit challenge of title. This framed the legal baseline against which the defendant's equitable claim was tested.
Whether a constructive trust and proprietary estoppel arose over the suit land
Yes. A constructive trust arose between the plaintiff and the defendant; the equitable doctrines of constructive trust and proprietary estoppel were applicable and enforceable on the facts
The court found as fact that the deceased husband was promised an interest, acted on the promise by paying the settlement loan and legal fees, and was put in possession in 1995. Rebecca Namaemba had by written agreement in August 1995 agreed to subdivide and transfer half the land, including 10 acres, to the deceased. The defendant and DW3 (David Wangwe Nyongesa) corroborated this. Equity would not allow the plaintiff's side to defeat that common intention; the trust acts on the conscience of the legal owner.
Whether the plaintiff proved his claim and whether the defendant proved her counterclaim
The plaintiff failed to prove his case on a balance of probabilities and the suit was dismissed; the defendant proved her counterclaim and was granted a declaration of trust plus an order for transfer of 10 acres
Weighing the evidence, the court found the plaintiff was registered proprietor but that the defendant's deceased husband had paid the settlement loan and legal fees, entered a written agreement (DEx5) and taken possession in 1995, with the burial of the deceased attended by the plaintiff's family corroborating the arrangement. DW3's corroboration confirmed entitlement to 10 acres. The plaintiff's claim therefore failed, while the counterclaim succeeded on the balance of probabilities.
Legal principles established
#- Registration of a person as proprietor vests absolute ownership, and a certificate of title is prima facie evidence of absolute and indefeasible ownership subject only to challenge for fraud, misrepresentation, or acquisition illegally, unprocedurally or through a corrupt scheme
- A constructive trust is an equitable remedy imposed by law to prevent unjust enrichment and acts on the conscience of the legal owner; proof of parties' intention is immaterial to its imposition
- Where one party stands by and lets another incur expense or act to their prejudice on the faith of an agreement, equity (proprietary estoppel) will not permit that party to resile from the agreement
- Courts will not imply a trust easily; the intention of the parties to create a trust must be clearly determined before a trust is implied
Court orders
#- 1.Plaintiff's suit dismissed with no orders as to costs
- 2.A declaration that the plaintiff holds a portion of land in title number LR Kakamega/Lumakanda/6348 in trust for the Estate of the deceased
- 3.The plaintiff is ordered to transfer 10 acres of the suit land which the defendant occupies to the defendant within 60 days, and in default the Deputy Registrar of the court is mandated to sign the transfer on behalf of the plaintiff
- 4.No orders as to costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court jurisdiction) - the suit concerned ownership, title and occupation of land before the Environment and Land Court at Kakamega
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Charles Makheti v Florence Mukanda Barasa [2020] KEELC 408 (KLR)", Case Analysis (2020). ELC Case No. 84 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/408/eng@2020-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.