Wanjiru Njuguna v Joseph Wangondu & another [2021] KEELC 671 (KLR)

The 2nd respondent as registered owner admitted holding the land in trust; the appellant and her witness Mbuku Kivuta testified the land was clan land registered in the 2nd respondent's name because the husband was dead, the appellant was a woman and her sons minors. On a preponderance of this evidence, trust was established notwithstanding absence of possession or register entry.

The appellant's evidence did not demonstrate fraud; the 1st respondent was not shown to have known of the trust or to have colluded with the 2nd respondent. The transaction revolved around the 2nd respondent and one Kimani Mukonyi, and the 1st respondent's alleged involvement was conjectural and speculative.

The Torrens system does not obligate a purchaser to look beyond the register; the trust was not noted on the register, so the 1st respondent, in possession and having acquired the land for valuable consideration without knowledge of the trust, falls within the protection of Section 80(2).

The documents representing the transaction as a gift were authored by the 2nd respondent as transferor, not the 1st respondent; documentary evidence showed the 2nd respondent received and sought to refund Kshs. 90,000/-, inconsistent with a gratuitous gift.

The provision as it stood in 1994 permitted suits where the purchaser had gone into possession; the section is directed at those suing, not those being sued, and the 1st respondent went into possession, so the law applicable at the time comes to his aid.

The trustee sold the land; his defence of drunkenness was not credible since he made applications, obtained consent and attended the lands office. However, all prayers were directed at the 1st respondent, and equity would not disturb the innocent purchaser's land while the trustee's own land remains untouched.