Koros (Sued as the administrator of the Estate of Elijah CA Koros) v Kiptoo & 6 others

The Court of Appeal in Eldoret Civil Appeal No. 223 of 2013 found the 4th-7th Defendants were never parties to the earlier suit, and its 05/02/2016 ruling was a substantive determination. The Nakuru, Nairobi and Eldoret miscellaneous suits either concerned different issues or were dismissed in limine on technical grounds, so no element of res judicata was established.

Both sides breached mandatory procedural requirements: the Plaintiff sued on an unconfirmed grant without locus standi, and the 1st-6th Defendants' Counterclaim lacked a verifying affidavit. Applying the oxygen principle, Article 159(2)(d) and the Microsoft v Mitsumi principle, the court saved the pleadings given the two-generation dispute, while cautioning against future lapses.

The court characterized the counterclaims as claims on a trust arising from the parties' conduct. Since Section 20(1) excludes limitation periods for actions by beneficiaries in respect of fraudulent breach of trust, and the trust definition in the Trustees Act extends to implied and constructive trusts, the claims were not statute barred.

Relying on the testimony of Retired Justice Tunoi, the Oduor report, the 27/08/1974 agreement and the Land Control Board consent, the court found the parties carried on the acquisition of the land in common with a view to profit. The parol evidence rule barred the Plaintiff from contradicting the documentary record; the 7th Defendant contributed Kshs. 23,000.00 (80 acres) and the 4th-6th jointly Kshs. 35,000.00 (121.7 acres).

The clause required two conditions: failure to obtain the land and consequent refund. The Plaintiff acquired the land, so the clause never fell due. The vouchers totalling Kshs. 18,940.00 lacked narratives, were not sequential, and the Retired Judge testified the refund was rejected. Paying interest amounted to a unilateral variation of the written agreement, contrary to the parol evidence rule.

The statutory formalities in Section 3 of the Law of Contract Act and Section 38 of the Land Act do not affect resulting, implied or constructive trusts. The Plaintiff used the partners' money to secure the property and denied them their agreed shares, amounting to unjust enrichment; the resulting trust overriding interest under Section 28(b) of the Land Registration Act prevailed over his registration.

The doctrine of lis pendens, preserved via Section 107(1) of the Land Registration Act and the Judicature Act, prohibited dealings with the land pending Kitale HCCC No. 89 of 1997. The Plaintiff registered instruments without disclosure, and Land Limited's letter confirmed he withheld material information. His acts were deliberate and intended to disinherit the partners.

Under Section 8(2) of the Land Control Act the Board's decision is final and conclusive; the Plaintiff never appealed or exhausted internal mechanisms. The unchallenged consent conferred rights on the Plaintiff and the partners jointly and could not be overturned by a court or superseded by a fresh consent.

Applying Kasuve v Mwaani and Kimani Ruchine, the Defendants had to prove 12 years' uninterrupted exclusive possession. The pending ownership litigation and the registration of the decree in 2014 (naming the Defendants as proprietors) and the Court of Appeal decree in 2017 stopped or prevented time from running against the Plaintiff.