Cherelem v Lokudo (Environment and Land Appeal 003 of 2023) [2024] KEELC 3871 (KLR)
The bottom line
#A Kenyan court confirmed that land registered in a son's name but bought by his mother belongs to her through a constructive trust, and ordered him off the property.
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 erred in finding that a trust existed in favour of the Respondent
- 2.Whether the Appellant purchased the suit land in 1997 and followed the legal formalities regarding transfer
- 3.Reliefs
Key legal issues
#Existence of a trust in favour of the Respondent
A constructive trust arose because the Appellant acquired and registered the land bought by the Respondent; the trial court's finding cannot be faulted
The court reaffirmed the trial court's reliance on Francis Muthui Mathangani and Section 28(b) of the Land Registration Act, which recognizes trusts as overriding interests. Having bought the land and allowed her son to occupy and register it, the Respondent's beneficial ownership prevailed; the Appellant's acquisition was by wrongdoing.
Whether the Appellant purchased the suit land and complied with transfer formalities
The Appellant failed to prove his purchase; his oral transaction violated section 3(3) of the Law of Contract Act and his documents were defective, evidencing fraud
The Appellant had no written, witnessed sale agreement as required by section 3(3) of the Law of Contract Act. His LCB application and transfer form were unsigned, undated and unwitnessed. DW2 admitted the parcel did not exist in 1997. The Respondent, by contrast, produced an original witnessed sale agreement.
Whether the trial court ignored the Appellant's defence
The defence was duly considered; the contention had no merit
The court found the trial magistrate meticulously appreciated the Appellant's documentary evidence (transfer and consent) and the oral evidence of DW1, DW2 and DW3, correctly noting the defects in the documents and insufficiency of the oral testimony, all of which disentitled the Appellant to ownership.
Legal principles established
#- A first appellate court must re-evaluate, re-assess and re-analyse the evidence and reach its own independent conclusions
- The onus of proving a trust lies on the party who pleads it; courts never imply or presume a trust except in case of absolute necessity
- In absence of an express trust, trusts are created by operation of law, falling within constructive and resulting trusts
Court orders
#- 1.Appeal dismissed in entirety with costs to the Respondent
- 2.Judgment of the Subordinate Court varied to read that the Plaintiff shall also have the costs of the suit
- 3.Defendant ordered to cease any activities, occupation and use of the suit land within sixty (60) days, in default eviction to issue, unless expressly permitted by the Respondent in presence of witnesses to continue occupation and use
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Subordinate Court (Principal Magistrate's Court)
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over appeals from the Subordinate Court
Relief refused
#Appellant's appeal against the trial court's finding of trust and order to transfer
Appellant failed to prove purchase; no written agreement per section 3(3) Law of Contract Act; defence evidence defective
Costs
Appeal dismissed with costs to the Respondent; the judgment of the Subordinate Court varied so that the Plaintiff shall also have the costs of the suit.
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.
In the premises, I find no merit in the whole Appeal and I hold so. I hereby dismiss it in entirety with costs to the Respondent. Further, the judgment of the Subordinate Court is varied to read that the Plaintifi shall also have the costs of the suit, and Defendant is hereby ordered to cease any activities, occupation and use of the suit land within the next sixty (60) days in default eviction to issue against him, except if he is expressly permitted by the Respondent in presence of witnesses to continue occupation and use.
Since the Respondent bought the land, invited the Appellant to come onto it in 2002 and start using it, and eventually he was registered as owner, the registration created a trust.
It recognizes trust as overriding interest on registration.
Moreover, the Application to the LCB was dated 12/02/2001 but it was not accompanied by any consent form to show that indeed the same was ever granted. The transfer form was barely sign: it was signed only by individuals purporting to the sellers and the purchaser but not witnessed by anyone at all.
Issues in the judgment
#Court refers to the Appellant as 'It'/'its' in places despite the Appellant being a natural person
The judgment states the Respondent bought the land on 07/03/1994 for Kshs. 50,000/- while the Appellant claims purchase in 1997 at Kshs. 80,000/-; the consent dated 2021 postdates the 2005 registration, an internal inconsistency in dates
Judgment refers to 'Section 28(b)' of the Land Registration Act while the trial court's quoted findings concern constructive trusts; the exact subsection is not independently verified within the text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cherelem v Lokudo (Environment and Land Appeal 003 of 2023) [2024] KEELC 3871 (KLR)", Case Analysis (2024). Not stated in the judgment (Environment and Land Court Appeal, Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3871/eng@2024-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.