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ELCPartially AllowedEnvironment and Land Appeal E015 of 2023· [2024] KEELC 4850 (KLR)

Apondi v Apondi (Environment and Land Appeal E015 of 2023) [2024] KEELC 4850 (KLR)

Environment and Land Court
20 June 2024
AKA. Y. Koross
3,085 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a customary trust claim because family members claiming a share of registered land must prove, with solid evidence, that a trust was intended at registration.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Siaya against a magistrate's decision in which the respondent (plaintiff) had proved, on a balance of probabilities, a customary trust over land parcel Siaya/Obambo/1828 registered jointly in the names of the appellant (defendant) and their brother Charles Konya Apondi. The brothers' father had acquired the land from Adenyo Kondiege and died before adjudication, at which the property was registered in the joint names of the appellant and Charles. The respondent claimed the pair held it in trust for the five brothers and sought subdivision; the appellant contended the father's parcels were distributed among the sons at adjudication, with the respondent receiving three other parcels. Justice Koross first noted the memorandum of appeal offended Order 42 Rule 1(2) for being argumentative and condensed the five grounds into a single issue: whether the trial magistrate erred in finding the customary trust proved. Reviewing the evidence afresh under Order 42 Rule 32, the court applied the Supreme Court's guidelines in Isack M'inanga Kiebia and the principle from Juletabi that a trust is never implied, holding that the magistrate erred by relying on the fact of joint registration rather than the parties' intention at registration. The respondent's own evidence on his acquisition of other family parcels was found contradictory and unsubstantiated. The appeal was allowed: the trial judgment and decree were set aside and the respondent's claim dismissed, with each party bearing their own costs of the appeal and the lower court suit. The court also observed, without deciding, that the suit was incompetent as only one joint tenant was sued.

Key legal issues

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01

Proof of customary trust

Holding

The respondent failed to discharge the burden of proving a customary trust over the suit property; the trial magistrate erred in relying solely on the joint registration of the appellant and Charles

Reasoning

Section 107 of the Evidence Act places the onus of proving customary trust on the claimant, and the court never implies a trust but gives effect to the parties' intention. Applying the five Isack M'inanga Kiebia elements, the court found the registration of the appellant and Charles was not intended to benefit the respondent, who was himself registered as owner of other family parcels, and his testimony on those parcels was contradictory and unsubstantiated.

p. 6
02

Trial magistrate's flawed reasoning on the joint registration

Holding

The trial magistrate reasoned on the tenure (joint tenancy) of the registration rather than the intention of the parties at registration

Reasoning

The court held the magistrate relied on the fact of joint registration with Charles rather than the circumstances and intention at registration. The court also observed, in passing, that the suit property was held in joint tenancy and only one tenant was sued, which would have rendered the claim incompetent, though this ground was not raised on appeal.

p. 5
03

Powers of a first appellate court

Holding

A first appellate court will not interfere with a trial judgment unless the magistrate misdirected herself and arrived at an erroneous decision

Reasoning

Guided by Order 42 Rule 32 and Watt v Thomas as approved in Chief Land Registrar v Nathan Tirop Koech, the court rehearsed the principle that findings on credibility by a tribunal that saw and heard witnesses are entitled to great weight, but the appellate court must revisit the evidence and reach its own conclusions where the trial court's reasoning is shown to be flawed.

p. 3

Legal principles established

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  • Customary trust is an overriding interest not noted on the register; the claimant bears the burden of proving it and the court never implies a trust but gives effect to the parties' intention

Court orders

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  1. 1.The respondent's claim before the trial court is hereby dismissed
  2. 2.Each party shall bear their respective costs of this appeal and the lower court's claim

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 1(2)
  • Civil Procedure RulesOrder 42 Rule 32
  • Land Registration ActSection 24(a)
  • Land Registration ActSection 25
  • Land Registration ActSection 28(b)
  • Evidence ActSection 107
  • Registered Land Act (Repealed)General provisions on registration

Cases cited (10)

  • Watt v Thomas
    [1947] AC, 484
  • Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others
    [2018] eKLR
  • Isack M'inanga Kiebia v Isaaya Theuri M'lintari & another
    [2018] eKLR
  • Juletabi African Adventure Limited & another v Christopher Michael Lockley
    [2017] eKLR
  • Gichuki v. Gichuki
    [1982] KLR 285
  • Mbothu & 8 Others v. Waitimu & 11 Others
    [1986] KLR 171
  • Peter Gitonga v Francis Maingi M'ikiara
    [2007] eKLR
  • Mwangi v Mwangi
    [1986] KLR 328
  • Isabel Chelangat v. Samuel Tiro Rotich & 5 others
    (2012) eKLR
  • Kiarie v. Kinuthia
On appeal from
Siaya Magistrate's Court (trial court)
Not stated
Jurisdiction invoked
First appeal under Order 42 Rule 32 of the Civil Procedure Rules

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, "Apondi v Apondi (Environment and Land Appeal E015 of 2023) [2024] KEELC 4850 (KLR)", Case Analysis (2024). Environment and Land Appeal E015 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4850/eng@2024-06-20

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