Jeremiah Yatich (Suing as the administrator of the Estate of Joshua Yatich Chepyegon (DCD) v Christopher Kipkosgei & 3 others [2020] KEELC 3337 (KLR)
The bottom line
#An Eldoret court ruled that a registered title beats family trust claims unless you prove the trust with solid evidence, so the relatives occupying the land must vacate within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the late Joshua Yatich Chepyegon was the registered owner of parcel BARINGO/SERGONCHUN/229
Yes - the certificate of official search showed he was registered as proprietor on 4th December 1992 with title issued on 9th July 1993, and under Section 26 of the Land Registration Act his title is prima facie absolute and indefeasible
The court relied on the certificate of official search of 19th February 2016 showing registration and issuance of title. Section 26 of the Land Registration Act renders the certificate of title prima facie evidence of absolute ownership, impeachable only for fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition. No such grounds were established against the title.
Whether the defendants encroached and/or trespassed on the suit properties
Yes - having found the plaintiff's father was the registered owner and the defendants admitted being on and utilizing the land, they are trespassers
The court reasoned that since the plaintiff's deceased father was the registered absolute owner and the defendants admitted occupation and use of the land without establishing any right to it, their presence amounted to trespass. No evidence of a right to remain, whether through trust or beneficial interest, was successfully advanced.
Whether the defendants have beneficial interest in the suit properties
No - the defendants led no evidence of beneficial interest, and the evidence showed the family land had already been subdivided and allocated to each sibling including the plaintiff's father
The court noted the 4th defendant's own evidence that the family land had been subdivided into parcels 229, 230, 240, 245 and 255, allocated to Joshua, Kipkosgei, Kangogo, Enock and Japheth respectively. Each sibling had received land; the defendants produced no documents evidencing a beneficial interest in the plaintiffs' parcels. The court found no basis for a beneficial interest.
Whether the plaintiffs hold the suit properties in trust for the defendants
No - the defendants failed to prove a customary trust; trust is a question of fact requiring evidence, and no intention to create a trust was established
The court applied Chogera v Kimani, M'Inanga (SCoK) and Juletabi, holding that the burden of proving a trust lies on the claimant and the court will not presume a trust except in absolute necessity. The titles did not express any trust, the claimants' evidence was contradictory, and the allocation of land to all siblings negated any intention to create a trust in favour of the defendants.
Legal principles established
#- The legal burden of proving the existence of a trust rests with the party asserting the right, and customary trust is a question of fact which must be proved by leading evidence
- A certificate of title is prima facie evidence of absolute and indefeasible ownership, subject to challenge only on grounds of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition
- The court cannot imply the existence of a trust unless there was intention to create a trust in the first place
Court orders
#- 1.The defendants do give vacant possession to the plaintiff on land parcel No. BARINGO/SERGONJUN/229 and 240 in the two consolidated cases within 30 days failure of which eviction to issue
- 2.An order is hereby issued for a permanent injunction restraining the defendants from further encroaching on the suit parcels of land
- 3.An order is hereby issued for removal of caution by the 4th defendant
- 4.Costs to be paid by the defendants plus interest
- 5.Defendants' counterclaim is dismissed with costs to the plaintiffs
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act (original jurisdiction over land disputes); suits consolidated by consent with Eldoret E&L No. 289/17 as lead file
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jeremiah Yatich (Suing as the administrator of the Estate of Joshua Yatich Chepyegon (DCD) v Christopher Kipkosgei & 3 others [2020] KEELC 3337 (KLR)", Case Analysis (2020). Eldoret E&L No. 289 of 2017 (lead), consolidated with Eldoret E&L No. 288 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3337/eng@2020-02-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.