Gikonyo & another v Kamau (Environment & Land Case E26 of 2021) [2024] KEELC 4277 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the counter-claim should be struck out for want of a verifying affidavit
The counter-claim was properly before the trial court notwithstanding the absence of a verifying affidavit; striking it out would offend Article 159(2)(d)'s anti-technicality command
The court held the original counter-claim was properly before the magistrate despite lacking a verifying affidavit as required by Order 4 Rule 1(2) of the Civil Procedure Rules 2010. Striking it out would contravene Article 159 of the Constitution, and the rule was intended only to cure the mischief of filing multiple suits on the same cause of action in different courts.
Whether an implied (resulting/constructive) trust arose in favour of the appellants
Yes - the conduct of the deceased created a beneficial interest in the appellants' mother and the appellants, which is an overriding interest under section 28 of the Land Registration Act
The deceased placed his sister on the land in the early 1990s, never evicted her children before or after his death, and could not have intended her to act as a guard against grabbers for about 20 years. His conduct depicted surrender of rights and an intention to gift the property as the family home, creating a trust notwithstanding the respondent's registration.
Whether the respondent's title obtained through the succession cause defeats the appellants' interest
No - the respondent became a trustee; the grant, confirmation and transmission did not disturb the pre-existing trust
The registration obtained via the Kisumu succession cause did not extinguish the beneficial interest created by the deceased. Sections 25(2) and 28 of the Land Registration Act preserve trusts as overriding interests, so the respondent, on registration, merely held the certificate of lease in trust for the appellants and must transfer the property to them.
Legal principles established
#- Registration confers indefeasible title, but section 28 of the Land Registration Act makes registered land subject to overriding interests including trusts, which need not be noted on the register
- A certificate of title is prima facie evidence of absolute and indefeasible ownership but may be challenged on grounds of fraud, misrepresentation or illegal, unprocedural or corrupt acquisition
- A first appellate court must re-evaluate and subject the whole of the trial evidence to fresh and exhaustive scrutiny and reach its own conclusions
- Proceedings and transmission in a succession cause cannot defeat a pre-existing beneficial interest/trust in the property
Court orders
#- 1.Appeal allowed
- 2.Judgment of the lower court set aside
- 3.Judgment entered dismissing the respondent's suit in the lower court
- 4.Counter-claim allowed: the respondent holds the certificate of lease in respect of Nakuru/Municipality/Block 27/767 in trust for herself and the appellants
- 5.The respondent to transfer the property to the appellants
- 6.No order as to costs
- On appeal from
- Nakuru Chief Magistrate's Court (Environment and Land)
- Nakuru CM ELC No. 170 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's decision (Section 78 Civil Procedure Act, Cap 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gikonyo & another v Kamau (Environment & Land Case E26 of 2021) [2024] KEELC 4277 (KLR)", Case Analysis (2024). Nakuru CM ELC No. 170 of 2019 (appeal thereto). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4277/eng@2024-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.