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ELCDismissedEnvironment and Land Appeal 59 of 2018

Muasya v Nywoki & 2 others

Environment and Land Court of Kenya
20 September 2023
3,187 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld an unwritten family land deal, ruling that years of open occupation created a trust that overrides a registered owner's title.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Machakos against the judgment of Hon. A. Lorot, Senior Principal Magistrate, delivered on 27 August 2018 in Machakos Civil Suit No. 878 of 2014, which dismissed the appellant's claim for eviction and a permanent injunction over land parcel Muthetheni/Kalamba/427. The appellant, registered proprietor of the suit property, sued his late brother's family (the respondents), alleging trespass. The respondents defended on the basis of an oral 1984 agreement under which their father, Nywoki Muasya, gave up his share in parcel Muthetheni/Kalamba/440 in exchange for a quarter acre of the suit property, and they had occupied it openly since then. On appeal, the appellant argued the trial court erred in finding an oral land exchange agreement, that his title was indefeasible under Section 26 of the Land Registration Act, and that any land contract required writing under Section 3(3) of the Law of Contract Act. The respondents maintained a constructive trust arose from the parties' common intention and conduct. Nyukuri J, re-evaluating the evidence as a first appellate court, found the respondents entered the suit property before 1996 (contradicting the appellant's claim of 2007 entry), that the appellant never sued during the deceased's lifetime, and that this conduct confirmed an arrangement creating a constructive trust. The court held the absence of writing did not negate the trust and dismissed the appeal with costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court was justified in dismissing the Appellant's claim on the basis that there was an oral agreement between the Appellant and his late brother as seen in their conduct and acquiescence
  2. 2.Whether a constructive trust arose notwithstanding the absence of a written agreement under Section 3(3) of the Law of Contract Act

Key legal issues

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01

Whether an oral land exchange agreement created a constructive trust despite Section 3(3) of the Law of Contract Act

Holding

Yes - the conduct, acquiescence and long occupation of the respondents established a constructive trust binding the appellant

Reasoning

The appellant allowed the deceased's family to occupy a quarter acre of the suit property from before 1996 and never sued during the deceased's lifetime, only filing suit after his death in 2006. The court held this conduct confirmed an arrangement between the brothers creating a constructive trust, and that equity does not require such a family arrangement to be in writing.

p. 6
02

Whether the trial court erred in its evaluation of the evidence

Holding

No - the trial court's finding of an oral agreement based on the parties' conduct was justified

Reasoning

The court re-evaluated the evidence as a first appellate court. The appellant's witness statement claimed entry in 2007, but PW2 testified she found the respondents living on the property when she married into the family in 1996, and photographs showed permanent houses. The appellant's own concession that the parcels were family land and that the deceased's family moved in during the deceased's lifetime supported the trial court's finding.

Legal principles established

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  • A constructive trust may arise from an oral arrangement between family members acted upon by the parties, notwithstanding Section 3(3) of the Law of Contract Act
  • A first appellate court must re-analyze, re-assess and re-evaluate the evidence and make its own conclusions, bearing in mind it had no opportunity to see or hear witnesses

Court orders

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  1. 1.The Appeal is dismissed with costs to the Respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court at Machakos
Civil Suit No. 878 of 2014
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court under the Environment and Land Court Act

Relief refused

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Allowing the appeal and setting aside the trial court's judgment dismissing the appellant's suit for eviction and permanent injunction

The court found the trial court did not err; conduct of the parties demonstrated an oral arrangement creating a constructive trust

Costs

Appeal dismissed with costs to the Respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The mere fact that the arrangement between two brothers was not reduced in writing does not negate the existence of a constructive trust.
p. 6Constructive trust - oral family arrangement
As there is no merit in this Appeal, the same is hereby dismissed with costs to the Respondents.
p. 6Final orders - dismissal of appeal
A constructive trust is based on "common intention" which is an agreement, arrangement or understanding actually reached between the parties and relied on and acted on by the Claimant.
p. 6Definition of constructive trust (Lloyds Bank Plc v Rosset)
If one party to an agreement stands by and lets the other party incur expense or prejudice his position on the faith of the agreement being valid he will not then be allowed to turn around and assert that the agreement is unenforceable.
p. 6Estoppel by conduct (Steadman v Steadman)

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, "Muasya v Nywoki & 2 others", Case Analysis (2023). Environment and Land Appeal 59 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20019/eng@2023-09-20

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