Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedKericho HCELC (number not stated in judgment)· [2024] KEELC 4114 (KLR)

David Kiptomoi Langat (substituted by Simon Kibet Tormoi) v Moses Kibore Saina (as personal representative of the Estate of Joel Kipsang Korir)

Environment and Land Court
9 May 2024
13,224 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~53 min to read original · ~4 min brief

The bottom line

#

The court confirmed that land bought with family money but registered in one relative's name is held in trust, and ordered it divided among the family.

What this practically means

#

Executive summary

#
In this first-instance land suit, the plaintiff (originally David Kiptomoi Langat, later substituted by his son Simon Kibet Tormoi) sued his elder brother Joel Kipsang Korir (later substituted by his son Moses Kibore Saina) claiming that three parcels - Kericho/Koita-Burot/289, Kamara/Mau Summit Block 4/115 (Boror 'B') (subdivided into 4/153 and 4/157) and Kericho/Manaret/14 - had been purchased with dowry proceeds from the parties' sisters, and were registered in the deceased defendant's name to hold in trust for the family under a customary trust. The defendant counterclaimed for a declaration of absolute ownership, eviction and injunction. The court found it undisputed that the family migrated from Gwasi landless in 1962, that dowry was paid in 1962, that the parcels were acquired between 1962 and 1965, and that the deceased defendant was only employed on 4th November 1976 - after the purchases - leaving no proved source of personal income for them. Registration in his name was explained by Kipsigis custom barring women from owning land. Relying on Sections 25 and 28 of the Land Registration Act and the Supreme Court's decision in Kiebia v M'lintari, the court held the parcels were family land subject to a customary trust, and that a 1976 family meeting had divided them, with each brother taking possession accordingly. The plaintiff's claim succeeded substantially: registrations over Koita-Burot/289 and the Mau Summit subdivisions were ordered cancelled within 30 days, with Koita-Burot/289 shared equally and the Mau Summit parcels registered to the plaintiff's estate, plus an injunction; the counterclaim failed. As a family suit, there were no orders as to costs.

Key legal issues

#
01

Whether the three suit parcels were family land purchased from dowry proceeds and registered in the deceased defendant's name under a customary trust

Holding

Yes - the parcels were purchased between 1962 and 1965 using dowry proceeds received by the parties' mother, who could not be registered under Kipsigis custom, and she entrusted her eldest son to hold them for his younger brother

Reasoning

The court found it undisputed that the deceased defendant had no land when the family migrated in 1962 and was only employed on 4th November 1976, after all the parcels had been purchased. The dowry evidence by PW2 and PW3, the 1976 family division under which each brother took possession of his allotted portion, and the Kipsigis custom barring women from land registration all corroborated the customary trust.

p. 21
02

Whether registration under the Land Registration Act defeated the trust claim

Holding

No - trusts including customary trusts are overriding interests under Section 28 that bind the registered proprietor without being noted on the register

Reasoning

Relying on the Supreme Court's decision in Kiebia v M'lintari, the court held that a registered proprietor remains subject to trusts and obligations, and rights of persons in possession or actual occupation are subsumed in customary trusts under Section 25(b) of the Land Registration Act.

p. 20
03

Whether the customary trust should be dissolved and the land divided per the 1976 family arrangement

Holding

Yes - the family had agreed on a division and both parties had taken possession of their respective portions, so the trust was dissolved and the parcels divided accordingly

Reasoning

The court found that pursuant to the 1976 family sitting, Koita-Burot/289 was to be shared equally, Mau Summit Block 4/115 (now 4/153 and 4/157) given exclusively to the deceased plaintiff, and Manaret/14 to the deceased defendant, who had occupied it until his death - a state of affairs confirming the family-land character of the parcels.

p. 21

Legal principles established

#
  • Customary trusts, as well as all other trusts, are overriding interests under Section 28 of the Land Registration Act and need not be noted on the register
  • The protections of a registered proprietor under the Land Registration Act do not relieve a proprietor of obligations owed as a trustee
  • Where a family member entrusted with land for the benefit of others abuses the trust for his own benefit, equity imposes a constructive trust to guard against unjust enrichment

Court orders

#
  1. 1.Declaration that the customary trust initially created over the suit lands is now dissolved
  2. 2.Cancellation of the deceased Defendant's registration to land parcel L.R. No. Kericho/Koita-Burot/289 within 30 days and the suit property shared equally between the deceased Defendant and the deceased Plaintiff
  3. 3.Cancellation within 30 days of the deceased Defendant's registration to land parcels Kamara/Mau Summit Block 4/153 (Boror 'B') and Kamara/Mau Summit Block 4/157 (Boror 'B') and their registration in the name of the deceased Plaintiff
  4. 4.Injunction restraining the deceased Defendant's estate, workers, servants, employees and agents from entering, working on, transferring, leasing or interfering with the deceased Plaintiff's estate's possession or use of Kamara/Mau Summit Block 4/153 and 4/157 (Boror 'B') and the plaintiff's portion in L.R. No. Kericho/Koita-Burot/289
  5. 5.No orders as to costs

Authorities

#

Legislation

  • Land Registration ActSection 25
  • Land Registration ActSection 25(b)
  • Land Registration ActSection 28
  • Land Registration ActSections 24, 24(a-b), 26, 26(1) and 66
  • Constitution of Kenya, 2010Article 40
  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 11
  • Registered Land Act (repealed)Sections 28 and 30(g)

Cases cited (9)

  • Isack M'inanga Kiebia v Isaaya Theuri M'lintari & another
    [2018] eKLR; Civil Case 10 of 2015 [2018] KESC 22 (KLR)
  • Twalib Hatayan & Anor v Said Saggar Ahmed Al-Heidy & Others
    [2015] eKLR
  • Daniel Otieno Migore v South Nyanza Sugar Co. Ltd
    [2018] eKLR
  • Raila Amolo Odinga & Another v IEBC & 2 Others
    [2017] eKLR
  • Jackline Chepngetich Rono & Another v Crispine Kiplangat Rono & 2 Others
    Kericho HCELC No. 19 of 2018
  • Juletabi African Adventures Limited & Another v Christopher Michael Lockley
    [2017] eKLR
  • Katana Kalume & Another v Municipal Council of Mombasa & Another
    [2019] eKLR
  • Republic v The Registrar of Title Mombasa & 2 Others ex parte Emfil Limited
    [2012] eKLR
  • Joseph Oduor Anode v Kenya Red Cross Society, Nairobi High Court Civil Suit No. 66 of 2009
    [2012] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to title to and interests in land (suit commenced by plaint)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "David Kiptomoi Langat (substituted by Simon Kibet Tormoi) v Moses Kibore Saina (as personal representative of the Estate of Joel Kipsang Korir)", Case Analysis (2024). Kericho HCELC (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4114/eng@2024-05-09

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