Muasya v Nywoki & 2 others
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.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
#Whether an oral land exchange agreement created a constructive trust despite Section 3(3) of the Law of Contract Act
Yes - the conduct, acquiescence and long occupation of the respondents established a constructive trust binding the appellant
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.
Whether the trial court erred in its evaluation of the evidence
No - the trial court's finding of an oral agreement based on the parties' conduct was justified
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
#- 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
#- 1.The Appeal is dismissed with costs to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
#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.
As there is no merit in this Appeal, the same is hereby dismissed with costs to the Respondents.
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.
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.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.