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ELCPartially AllowedEnvironment & Land Case 144 & 152 of 2019 (Consolidated)· [2023] KEELC 21766 (KLR)

Tomno & another v Cherono & 3 others

Environment and Land Court of Kenya
23 November 2023
LOL. A. Omollo
36,538 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~146 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a registered landowner actually held the land in trust for family members who paid for it and lived on it since 1964.

What this practically means

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Executive summary

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Two consolidated suits were heard by the Environment and Land Court at Nakuru: ELC 144 of 2019 in which Rebecca Chepkoech Tomno, the registered proprietor of Baringo/Ravine Block 102/242 (formerly Plot 399 allocated by the Settlement Fund Trustees in 1964), sought a declaration of ownership, vacant possession, removal of a caution, a permanent injunction and general damages for trespass against the family of her late brother-in-law Raymond Cherono Tomno; and ELC 152 of 2019 in which Esleen Tarkok Cherono, Raymond's widow and administratrix, claimed that the Plaintiff held the land in trust for the deceased under a resulting trust, the loans having been repaid by Raymond and his son Edmound, with the family in occupation since 1964. The court framed two issues: whether a resulting trust existed, and costs. Applying the principle that a trust will only be implied to give effect to the parties' intention, and on a balance of probabilities, the court found that the Defendants proved they paid the Settlement Fund Trustee loans - producing original receipts, a bank statement and a confirmation letter from the Director of Land Adjudication - while the Plaintiff produced no receipts and failed to produce the first instalment receipt or the application for allotment. The Defendants' uninterrupted occupation since 1964, the burial of Raymond's son on the land without objection, and utility connections in the 3rd Defendant's name reinforced the finding. The contested Koriema meeting of 22nd May 2019 could not assist either party, the probabilities being equal. The court held that a resulting trust exists in favour of the estate of Raymond Cherono Tomno. The Plaintiff's suit was dismissed; judgment was entered for the 1st Defendant with a permanent injunction against the Plaintiff, a declaration of trust, an order for transfer within 30 days (failing which the Deputy Registrar to execute), registration of the 1st Defendant as proprietor, and each party bearing own costs given the family relationship.

Key legal issues

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01

Whether the Plaintiff held the suit land in trust for the late Raymond Cherono Tomno under a resulting trust

Holding

Yes - a resulting trust was found in favour of the estate of Raymond Cherono Tomno

Reasoning

The court found on a balance of probability that the Defendants paid the Settlement Fund Trustee loan, producing original receipts and a bank statement corroborating the final payment of Ksh 79,950 by the 3rd Defendant. The Defendants had been in occupation since 1964, and the Plaintiff neither occupied the land nor proved her own payments. Payment of the purchase/loan money by the Defendants, coupled with long occupation, evidenced an intention to create a trust.

02

Who paid the Settlement Fund Trustee loan on the suit parcel

Holding

The Defendants, on a balance of probability, proved they paid the loan

Reasoning

The Defendants produced original receipts dated 1965, 1989, 2004 and 2018, a bank statement showing withdrawal of Ksh 180,000 on 15th December 2018, and a letter from the Director of Land Adjudication confirming the 3rd Defendant's payment of Ksh 79,950 on 19th December 2018. The Plaintiff produced no receipts and failed to produce the first instalment receipt of Ksh 290 or the application for allotment, which the court held was fatal to her claim.

p. 57
03

What transpired at the Koriema meeting of 22nd May 2019

Holding

Neither party discharged its burden; the court could not rely on the meeting to determine the matter

Reasoning

Each party gave conflicting accounts - the Plaintiff said the deceased acknowledged the land was hers and agreed to hand it over; the Defendants said the meeting was called to compel transfer to the deceased and turned chaotic. Applying the balance of probabilities standard, the court found the probabilities equal and therefore neither party proved what was discussed.

p. 58
04

Costs of the two suits

Holding

No order as to costs; each party to bear own costs

Reasoning

Although costs follow the event under Section 27 of the Civil Procedure Act, the court noted the parties are family members and, in the spirit of burying the past and forging ahead, declined to award costs to the successful 1st Defendant.

p. 59

Legal principles established

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  • The intention of the parties is crucial in determining the existence of a trust; courts will not imply a trust save to give effect to that intention
  • The onus of proving a resulting trust lies on the party asserting it
  • The standard of proof in civil cases is the balance of probabilities
  • Costs follow the event under Section 27 of the Civil Procedure Act, but the court may direct otherwise for good reason

Court orders

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  1. 1.The Plaintiff's claim in ELC No 144 of 2019 fails and is dismissed
  2. 2.An order of Permanent injunction restraining/baring the Plaintiff, her agents, employees and children from occupying, utilizing or in any other way from dealing with the suit land namely BARINGO/RAVINE BLOCK 102/242
  3. 3.A declaration that the Plaintiff holds the suit land namely BARINGO/RAVINE BLOCK 102/242 in trust for the 1st Defendant who is the beneficial owner
  4. 4.The Plaintiff shall execute all necessary transfer instruments to transfer the suit land to the 1st Defendant or to her assign; should she fail to do so within 30 days, the Deputy Registrar of this court shall do so on her behalf
  5. 5.The Land Registrar Koibatek/Mogotio shall register the 1st Defendant as the proprietor of BARINGO/RAVINE BLOCK 102/242 upon presentation of the requisite transfer instrument and payment of requisite fees
  6. 6.Each party shall bear own costs

Authorities

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Legislation

  • Land Registration Act, 2012Section 26(1)
  • Land Registration Act, 2012Section 75
  • Land Registration Act, 2012Section 73(2)
  • Evidence Act, Cap 80Sections 107 and 109
  • Evidence Act, Cap 80Section 35(1)(a) and (b)
  • Civil Procedure Act, Cap 21Section 27
  • Civil Procedure RulesOrder 9 Rule 2
  • Civil Procedure RulesOrder 37 rule 7
  • Limitation of Actions ActSections 37 and 38
  • Agriculture ActSection 175
  • Registration of Land Act, Cap 300 (repealed)Section 28
  • Registration of Land ActSection 25
  • Trustee Actdefinitions of 'trust' and 'trustee'

Cases cited (17)

  • Republic vs City Council of Nairobi & 3 Others
    [2014] eKLR
  • Paul Victone Otieno v George Asuke & 2 others
    [2022] eKLR
  • Wreck Motor Enterprises v Commissioner of Lands & 3 others
    [1997] eKLR
  • Peter Ndungu Njenga vs Sophia Watiri Ndungu
    [2000] eKLR

    Courts will not imply a trust save to give effect to the intention of the parties, which must be clearly determined

  • Twalib Hatayan Twalib Hatayan & Ano vs Said Saggar Ahmed Al-Heidy & Others
    [2015] eKLR

    Restatement of the law on constructive and resulting trusts

  • Juletabi African Adventure Limited & Another v Christopher Michael Lockley
    [2017] eKLR

    Law on trusts; resulting trust arises in favour of the person who advances the purchase money

  • Felista Muthoni Nyaga v Peter Kayo
    [2016] eKLR
  • Nakuru Industries Limited v S S Mehta & Sons
    [2016] eKLR
  • Vincent E. Mukoko v Abdirahman Abdinur; Harun Omam Okal Okeyo (Interested Party)
    [2021] eKLR
  • Willesden Investments Limited v Kenya Hotel Properties Limited
    [2006] eKLR
  • Jasbir Singh Rai & 3 others Vs Tarlochan Singh Rai & 4 others
    [2014] eKLR
  • Jane Wanjiku Wambu Vs Anthony Kigamba Hato & 3 others
    2017 eKLR
  • Raila Amolo Odinga vs IEBC & 2 others
    Presidential Election Petition No. 1 of 2017
  • Kazungu Fondo Shutu & another v Japhet Noti Charo & another
    [2021] eKLR

    The law never implies a trust save in case of absolute necessity; intention must be clearly determined

  • Heartbeat Limited v Ng'ambwa Heartbeat Community Children's Home & Rescue Center
    [2018] eKLR

    The onus of proving a resulting trust lies on the party asserting it

  • Hellen Wangari Wangechi v Carumera Muthoni Gathua
    [2015] eKLR

    Standard of proof in civil cases is the balance of probabilities

  • Gissing vs Gissing
    [1971] AC 886
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and the Environment and Land Court Act over disputes relating to land

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, "Tomno & another v Cherono & 3 others", Case Analysis (2023). Environment & Land Case 144 & 152 of 2019 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21766/eng@2023-11-23

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