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ELCAllowedEnvironment & Land Case 1 of 2022 (formerly Eldoret ELC Cause No. 16 of 2021 (O.S))· [2022] KEELC 15317 (KLR)

Dorcas Jebet Keino v Josphat Kimutai Chebongei

Environment and Land Court of Kenya
8 December 2022
2,870 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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A Kenyan court ruled that land registered in a step-brother's name still belongs in trust to his step-sister's family under customary trust law.

What this practically means

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Executive summary

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The plaintiff, Dorcas Jebet Keino, sued her step-brother, Josphat Kimutai Chebongei, by originating summons (later converted to a plaint) seeking a declaration that his registration as proprietor of LR No Cherangany/Kondabulet/55 is subject to a trust in favour of herself and her four sisters, and that the trust be terminated and the land distributed among them. She claimed the land belonged to her mother's house (the third house of their father, Chebongei Kech), that the defendant caused himself to be registered during the 1973-1974 demarcation without the father's knowledge, and that after the discovery in 1993 the defendant apologised and executed an agreement to pay Kshs 169,000/- for the land, which he never honoured. The defendant denied the trust, asserting he was the original allottee, but in evidence departed from his pleadings, admitting the land belonged to his father and that he was registered on the father's instructions. The court framed three issues: existence of a trust, its determination, and the orders to make. Finding the plaintiff's witnesses honest and the defendant dishonest, and relying on the defendant's conduct in offering to buy the land, the court held the registration is subject to a trust in favour of the plaintiff and her family and granted the prayers sought as prayed. No costs order was made.

Key legal issues

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01

Whether the defendant's registration as proprietor of the suit property is subject to a customary/intergenerational trust in favour of the plaintiff's family

Holding

Yes - the registration is subject to a trust in favour of the plaintiff and her family

Reasoning

The court found the plaintiff and her mother lived on the suit property, which was family land before registration in the defendant's name. The defendant departed from his pleadings, admitting the land belonged to his father and that he was registered on his father's instructions. The court found the defendant dishonest and the plaintiff's witnesses credible, and accepted that the defendant signed an agreement offering to buy the land, conduct inconsistent with absolute ownership.

02

Whether the defendant's departure from his pleadings and his credibility affected the outcome

Holding

The defendant was found to be a dishonest witness whose departure from pleadings undermined his defence

Reasoning

The defendant pleaded he was the original allottee and that the plaintiff never lived on the land, but in evidence stated the land belonged to his father, that the plaintiff and her mother lived there, and that his registration was effected on his father's instructions. The court preferred the plaintiff's witnesses despite a minor inconsistency regarding the chief's attendance at meetings.

p. 6

Legal principles established

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  • Possession of land is not necessary to prove a customary trust
  • A party who departs from his pleadings in evidence undermines his own defence; credibility findings may be based on such departure

Court orders

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  1. 1.Declaration that registration of the defendant as proprietor of LR No Cherangany/Kondabulet/55 is subject to a trust in favour of the plaintiff and her family
  2. 2.Prayers sought in the originating summons granted as prayed

Authorities

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Cases cited (5)

  • George Mbiti Kiebia & another v Isaya Theuri M'lintari & another
    (2014) eKLR

    Proof of possession of land is not necessary to prove customary trust

  • Njenga Chogera v Maria Wanjira & 2 Others
    (2005) eKLR

    Principles governing claims based on trust; cited to argue plaintiff failed to discharge burden of proving trust

  • Peter Ndungu Njenga v Sophia Watiri Ndungu
    (2000) eKLR

    Principles governing trust claims; cited by defendant

  • Juletabi African Adventure Limited & Another v Christopher Michael Lockley
    (2017) eKLR

    Principles governing trust claims; cited by defendant

  • Isack Kiebia M'inanga v Isaaya Theuri M'lintari & Another
    SCOK Case No 10 of 2015

    Principles that undergird a claim based on trust

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) Constitution / ELC Act); suit commenced by originating summons seeking declaration of trust

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, "Dorcas Jebet Keino v Josphat Kimutai Chebongei", Case Analysis (2022). Environment & Land Case 1 of 2022 (formerly Eldoret ELC Cause No. 16 of 2021 (O.S)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15317/eng@2022-12-08

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