Bethwel Kiplagat Kosgei v Jackson Chepkwony & Land Registrar, Uasin Gishu County [2020] KEELC 1008 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 1st defendant held the suit land in trust for the plaintiff and his siblings
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
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.
Whether the plaintiff is entitled to his 9-acre share
Yes. The court found the plaintiff entitled to his share of 9 acres as beneficiary of the customary trust
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.
Whether the subdivision and issuance of new titles was legal
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
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.
Legal principles established
#- 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
#- 1.A declaration that the subdivision of Cheptiret/Cheplaskei Block 1(Kipchamo)52 is illegal and is cancelled
- 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.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.An order of permanent injunction restraining the 1st Defendant from trespassing into, constructing upon, transferring and/or otherwise encumbering the 9.0 acres
- 5.The 1st defendant to pay costs of the suit
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.