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ELCPartially AllowedEldoret ELC (not stated in judgment)· [2020] KEELC 1008 (KLR)

Bethwel Kiplagat Kosgei v Jackson Chepkwony & Land Registrar, Uasin Gishu County [2020] KEELC 1008 (KLR)

Environment and Land Court
23 June 2020
2,765 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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An Eldoret court ruled that family land secretly subdivided by a trustee was cancelled, and the rightful heir got his 9 acres back.

What this practically means

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Executive summary

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By a plaint dated 17th August 2018, the plaintiff - substituted for the deceased Edrick Musimbi Kosgei as administrator ad litem - sued his uncle, the 1st defendant, and the Land Registrar, seeking declarations that the subdivision of Cheptiret/Cheplaskei Block 1(Kipchamo)52 and the subsequent registrations of parcels 129, 130 and 131 in the 1st defendant's name were fraudulent and void, an order for transfer of 9 acres to the plaintiff, a permanent injunction, and costs. The 1st defendant did not respond; the 2nd defendant, represented by the Attorney General, declined to participate, so the suit proceeded by way of formal proof. The plaintiff testified that his grandfather, Mzee Malakwen Arap Rutto, apportioned the ancestral land among his children before his demise, allocating 9 acres to Geofrey Kosgei (the plaintiff's father), with the 1st defendant registered as trustee. Minutes of meetings held in 2014 at the Human Rights office showed the 1st defendant admitted the 9 acres belonged to the plaintiff and undertook to transfer but failed to do so, instead subdividing the land into four plots and registering them in his own name. Applying the Supreme Court's decision in Isack M'Inanga Kieba on customary trusts, together with Section 28(b) of the Land Registration Act, the court found an intention to create a trust and that the plaintiff's claim met the customary trust elements. Relying on Section 80 of the Land Registration Act, the court held the subdivision illegal and in bad faith. Judgment was entered for the plaintiff: declarations cancelling the subdivision and subsequent registrations, an order for transfer and registration of 9 acres to the plaintiff, a permanent injunction, and costs against the 1st defendant.

Key legal issues

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01

Whether the 1st defendant held the suit land in trust for the plaintiff and his siblings

Holding

Yes. The uncontroverted evidence, the apportionment by Mzee Malakwen and the minutes of meetings at the Human Rights office established an intention to create a customary trust

Reasoning

The court applied the Supreme Court's framework in Isack M'Inanga Kieba: the land was family/ancestral land before registration; the claimant belongs to the family; the relationship is not remote; the claim is directed against a registered proprietor who is a family member. The 1st defendant admitted in meetings that the 9 acres belonged to the plaintiff and agreed to transfer but never did. Registration was therefore in trust.

p. 3
02

Whether the plaintiff is entitled to his 9-acre share

Holding

Yes. The court found the plaintiff entitled to his share of 9 acres as beneficiary of the customary trust

Reasoning

Having found a trust based on the apportionment (9.0 acres to Geofrey Kosgei, the plaintiff's father) and the defendant's admission, the court held the plaintiff entitled to the 9 acres, directing transfer and registration.

p. 4
03

Whether the subdivision and issuance of new titles was legal

Holding

No. The subdivision was done illegally, in bad faith and in breach of trust, warranting cancellation of the resulting titles under Section 80 of the Land Registration Act

Reasoning

The defendant subdivided the land into plots 128, 129, 130 and 131 and transferred them to himself despite knowing he held the land in trust and without the consent of the beneficiaries. Official searches confirmed the registrations. Section 80 empowers the court to order rectification or cancellation where registration was obtained by fraud or mistake.

p. 4

Legal principles established

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  • Customary trusts qualify as overriding interests under Section 28(b) of the Land Registration Act and need not be noted on the register
  • A person alleging a trust must prove its existence and creation through evidence; the court will not presume a trust
  • A title acquired in breach of trust through unprocedural subdivision may be rectified or cancelled under Section 80 of the Land Registration Act

Court orders

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  1. 1.A declaration that the subdivision of Cheptiret/Cheplaskei Block 1(Kipchamo)52 is illegal and is cancelled
  2. 2.A declaration that the subsequent registration of parcels Cheptiret/Cheplaskei Block 1(Kipchamo)129, 130 and 131 in the name of the 1st Defendant is illegal and is cancelled
  3. 3.An order directing the 1st Defendant to execute a transfer of 9.0 acres of land parcel Cheptiret/Cheplaskei Block 1(Kipchamo)52 into the Plaintiff's name and the 2nd Defendant to register the parcel into the Plaintiff's name
  4. 4.An order of permanent injunction restraining the 1st Defendant from trespassing into, constructing upon, transferring and/or otherwise encumbering the 9.0 acres
  5. 5.The 1st defendant to pay costs of the suit

Authorities

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Legislation

  • Land Registration ActSection 28(b)
  • Land Registration ActSection 26
  • Land Registration ActSection 79
  • Land Registration ActSection 80(1) and (2)

Cases cited (6)

  • Charity Machaki Kaugi & Another -vs- Dickson Nyaga Kaugi
    [2019] eKLR
  • Isack M'Inanga Kieba Vs Isaaya Theuri M'Lintari & Isack Ntongai M'Lintari
    SCOK Petition 10 of 2015
  • Mbothu & 8 Others vs. Waitimu & 11 Others
    (1986) KLR 171
  • Gichuhi v. Gichuhi
    (1982) KLR 285
  • Mary Ruguni Njoroge -vs- John Samuel Gachuma Mbugua & 4 Others
    [2014] eKLR
  • Kiarie v. Kinuthia
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (not expressly cited; suit by plaint under the Land Registration Act)

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, "Bethwel Kiplagat Kosgei v Jackson Chepkwony & Land Registrar, Uasin Gishu County [2020] KEELC 1008 (KLR)", Case Analysis (2020). Eldoret ELC (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1008/eng@2020-06-23

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