Cherus v Rono & another

3. Both parties led their respective defences to the suits. After a full trial and in a judgment dated 25th November 2020, the trial judge (Ombwayo, J.) held that there was a valid sale transaction between the appellant’s and the respondents’ fathers. The learned Judge considered the behaviour of the appellant’s father and inferred that there arose a constructive trust. He entered judgment in favour of the respondents. He stated as follows; “ …..“The Defendant is the registered owner of the suit property LEMBUS/METIPSO/50, there is evidence that there was a sale transaction between the Plaintis’ father and defendant’s father as demonstrated in the proceedings before the tribunal but the same was not reduced into writing.” “The Defendant’s father's action of receiving money from the Plaintis father, executing an application for consenting (sic) at the Land Control Board to subdivide and transfer, obtaining the consent, signing mutation forms, putting the plaintis father in possession amounted to the creation of constructive trust ” 4. The appellant was aggrieved by this decision and led a memorandum of appeal dated 20th December 2021. The appeal is premised on twelve (12) grounds which we have taken the liberty to summarise as follows: that the learned Judge erred in fact and law in failing to consider that the respondents’ claim was that of a purchaser for value which they failed to prove; that the respondents’ claim was on fraud which they failed to prove; in failing to consider the manner of the respondents use and occupation of the appellants land; and in failing to note and consider the admissions that there was no sale agreement or signing of the transfer forms. 5. The appellant urged this court to allow the appeal with costs and set aside the judgment of the ELC dated 25th November 2020. 6. This appeal was heard virtually on 10th June 2026. The appellant was represented by Mr. Ochieng Gai and the respondents were represented by Mr. Kibii. Both parties relied on their respective written submissions that were highlighted orally. 7. The appellant submitted that the learned trial Judge failed to consider that the respondents’ claim was based on purchase, which they had not proved. He argued that parties are bound by their pleadings and that, having pleaded purchase and sale, the respondents were required to adduce evidence that their late father had entered into a contract or agreement for sale. He further submitted that, to prove purchase, the respondents had to establish the essential elements of a contract on a balance of probabilities, namely oer, acceptance, awareness,consideration, capacity, and legality. 8. He posited that the respondents did not prove that there was a willing seller, as the appellant categorically stated that his father did not sell; that they did not prove that there was any consideration, and it was clear that there was absolutely no witness to the sale. He pointed out that the court made no nding as to the sale. 9. In addition, the appellant submitted that the respondents pleaded that the appellant’s father obtained title to the suit land through fraud, yet no evidence whatsoever was led to prove the allegations. It was further submitted that since there were allegations and issues of fraud, the Judge had a duty to make a determination on that issue, but there was no nding or determination that the appellant’s father had obtained title fraudulently. 10. The appellant faulted the documents produced by the respondents, being a purported application for consent, letter of consent and mutation forms, as they were not produced by their maker, or an ocer from the lands oce, and that the documents were not original and were photocopies purportedly https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1692/eng@2026-09-25 2

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signed as true copies of the original. The appellant further claimed that the trial Judge showed bias when he stated that the appellant approved the creation of LR No. Lembus/Metipso/50 and not LR No. Lembus/Metipso/49, when in fact all the land parcels were in the name of the appellant’s father and No.49 was not in dispute. 11. The appellant argued that the learned Judge erred by failing to consider how the respondents came to occupy, possess and use the appellant’s land. He contended that the respondents entered the parcel stealthily while his father was in prison. Following the death of the appellant’s mother, the children could not live on the land alone and temporarily moved to their grandfather’s home. When the appellant’s father was released from prison, he asked the respondents’ father to vacate the land, but he refused and retained possession through his force, violence, intimidation and inuence of the provincial administration. 12. The appellant submitted that the respondents’ father, who was then a chief, used his authority and the provincial administration against the appellant’s father. He contended that there was no evidence that his father sold the land to the respondents’ father or agreed to transfer it to him in exchange for safeguarding it. He further noted that it was admitted that there was neither a sale agreement nor any witness to the alleged transaction. 13. The appellant submitted that an oral agreement, implied trust, or constructive trust had not been pleaded. He pointed out that, despite the absence of such pleadings, the Judge held that the appellant’s father’s unproven action of receiving money, executing an application for consent to subdivide and transfer, obtaining consent, signing mutation forms, and placing the respondents’ father in possession had created a constructive trust. He argued that the Judge erred in imputing a constructive trust where it had neither been pleaded nor proved. 14. Finally, the appellant argued that under the law of contract it is clear that no suit can be brought upon a contract for disposition of interest in land unless the same is in writing. Reliance was placed on Machakos District Co-operative Union Ltd Vs Philip Nzuki Kiilu, Civil Appeal No. l12 of 1997 (Gicheru, Omolo and Pall JJA). 15. The respondents submitted that the appeal lacked merit because they had adduced sucient evidence to prove the existence of an oral agreement under which the appellant’s father sold the suit property for valuable consideration of Kshs.9,600/= in the 1960s. They stated that, during the hearing before the Land Disputes Tribunal, the appellant’s father acknowledged receiving the full purchase price in cash, livestock, and construction materials. They further argued that he placed the respondents and the deceased’s beneciaries in occupation of the suit property, where they have remained on their respective parcels to date. According to the respondents, the appellant’s father obtained the Land Control Board’s consent to subdivide and transfer the suit property in their favour but, upon the death of their father, fraudulently transferred both parcels into his own name. They also contended that the appellant did not dispute the demarcation of the land in their favour, as shown by the green card and mutation form relating to the mother title. In support of this argument, they relied on Nakuru ELCA No. E2 of 2020, Milgo Vs Sang & Another (2023) KEELC 18048 (KLR). 16. The respondents urged that the appellant failed to demonstrate any illegality or fraud on the part of the respondents in so far as subdivision of the mother title is concerned and the subsequent process of obtaining consent to transfer the suit property in favour of the respondents. They stated that there was no material placed before the trial court to suggest that the signatures appearing in the mutation form and application to the Land Control Board dated 27th October1982 did not belong to the appellant’s father. They further argued that the trial court correctly observed that the appellant’s title for Lembus/ Metipso/49 is a resultant title arising from subdivision of Lembus/Metipso/41 but the appellant has https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1692/eng@2026-09-25 3

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no problem with it whatsoever. They pointed out that the appellant did not complain about the subdivision and creation of the resultant titles at any given time. 17. The respondents posited that the trial court correctly applied the principles of constructive trust and that the appellant did not contest execution of the mutation form and application for consent by the Land Control Board or attending South Baringo Land Control Board or the respondents’ long occupation. The respondents therefore assert that the appellant is estopped from reneging on the oral sale agreement. Urging that the doctrine of proprietary estoppel and constructive trust are applicable in this matter, the respondents placed reliance on Willy Kimutai Kitilit Vs Michael Kibet (2018) eKLR and Civil Appeal No. 31 of 2015 – Kiplagat Kotut Vs Rose Jebor Kipngok (2019) KECA 921 (KLR). They prayed that the appeal be dismissed with costs. 18. We have considered the record of appeal, the submissions and the authorities cited by the parties. As a rst appellate court, an appeal is by way of a retrial and the principles upon which this Court acts in such an appeal are well settled. Briey put, they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. [See Ng’ati Farmers’ CoOperative Society Ltd. Vs Ledidi & 15 Others [2009] KLR 331]. 19. This mandate was reiterated in the case of Kenya Ports Authority Vs Kuston (Kenya) Limited [2009] 2 EA 212 as follows; “ On a rst appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.” 20. To formulate the germane issues for determination, it is important that we summarize the facts as captured in the record of appeal. From the record, Stanley Kiplagat Rono, the 1st respondent, testied as PW1. He stated that the appellant’s father was arrested in 1979 and his father, Kiprono Arap Bondet agreed to take care of his land. When he returned from prison, he promised Kiprono Arap Bondet some land as appreciation, but his father proposed to buy the land, which he did. He admitted that they could not trace the signed agreement. 21. He further testied that his father and the appellant’s father attended the Land Control Board, where consent to transfer was issued on 27th October 1982. The land was thereafter subdivided into two portions, each party taking possession of their respective portion. He stated that, after his father’s death, title to the land was fraudulently issued on 11th July 1989 in the name of Kibunei Tuitoek Cherus. He added that the respondents continued to live on the parcel and that, when his father died, the appellant’s father attempted to evict them, leading to Land Tribunal Case No. 1 of 1998. The tribunal decided the matter in favour of their mother, who was the complainant. He also referred to CMCC Nakuru No. 542 of 1990, in which the appellant’s father again sought to evict them, but the court held that the land belonged to the respondents’ father. 22. In his defence, William Kiprotich Cherus, the appellant, testifying as DW1, stated that Lembus/ Metipso/41 was in the name of his father and it was later subdivided and titles issued in his deceased father’s name. He stated that he lives on parcel 49 and acknowledged the existence of the land tribunal proceedings which awarded the land to the respondents’ father. He urged that there was no evidence that the respondents bought the land. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1692/eng@2026-09-25 4

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23. We shall rst address whether there was a sale and purchase agreement. In essence, the appellant faults the court for failing to nd that the respondents’ claim was one of purchase, which they did not prove. Our attention was drawn to the plaint dated 7th December 2016, in which the respondents pleaded that their father purchased the suit land from the appellant’s father and that the appellant fraudulently registered the land in his own name. The nding on whether there was a sale transaction was based on the proceedings before the tribunal. Those proceedings informed the court’s conclusion, as the validity of the sale agreement was not an issue in the suit, having already been determined by the Land Disputes Tribunal in 1988 in a decision that was never challenged. The tribunal concluded as follows: “After considering the facts, this panel has established the land Lembus/Metipso/41 was sold to Mr. Kiprono Donde by Mr. Kibunei Cherus. There is enough evidence that the land was sold to the late Mr. Kiprono Bonde. This court cannot accept the refund of money as this would set a bad precedent. This panel has noted that consent was granted for the subdivision of this land. It was sub-divided to nos. 49 and 50. This panel therefore urges both parties to go forward and process the documents for the issue of land certicate as per the consent.” 24. The next issue we will deal with is the appellant’s contention that the court erred in nding that there was a constructive trust arising from the conduct of the parties. The learned Judge stated; “ In this matter the plaintis did not produce the agreement between their father and the defendant’s father. However, the behavior of the defendant's father when he applied for the consent of the Land Control Board and signed the mutation forms that created LEMBUS/ METIPSO/49 and 50 and never challenged the creation of the two parcels or land in a court of law created an implied trust that he was holding title to the land on behalf of the Plaintis’ father, the Plaintis’ father entered the land when the defendant’s father was in prison but purchased the land when the defendant’s father was out of prison. The defendant’s father gave possession to the Plaintis’ father at a consideration of Kshs. 9,600/=.” 25. The doctrine of constructive trust was aptly dened by this Court in the case of Macharia Mwangi Maina & 87 others Vs Davidson Mwangi Kagiri (2014) eKLR as follows: “ A constructive trust is based on common intention which is an agreement, arrangement or understanding actually reached between the parties and relied on and acted upon by the claimant.” 26. Black's Law Dictionary 8th Edition denes a constructive trust as follows: “ The right enforceable solely in equity, to the benecial enjoyment of property to which another person holds the legal titles; a property interest held by one person (the trustee) at the request of another (the settlor) for the benet of a third party (the beneciary).” 27. This Court in Twalib Hatayan & another Vs Said Saggar Ahmed Al-Heidy & 5 others [2015] eKLR expressed itself in the following terms: “ A constructive trust is an equitable remedy imposed by the court against one who has acquired property by wrong doing. (See Black’s Law Dictionary) (Supra). It arises where the intention of the parties cannot be ascertained. If the circumstances of the case are such https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1692/eng@2026-09-25 5

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as would demand that equity treats the legal owner as a trustee, the law will impose a trust. A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position for his own benet (see. Halsbury’s Laws of England supra at para1453). As earlier stated, with constructive trusts, proof of parties’ intention is immaterial; for the trust will nonetheless be imposed by the law for the benet of the settlor. Imposition of a constructive trust is thus meant to guard against unjust enrichment. In the present case, a constructive trust cannot be imposed or inferred since the suit premises were yet to be transferred to the third party. Therefore, there is no unjust enrichment to be forestalled.” 28. The Supreme Court of Kenya in MNK Vs POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) (Petition 9 of 2021) [2023] KESC 2 (KLR) (Family) (27 January 2023) dealt with the question of constructive trust and expressed itself in the following terms: “ On our part, on evaluating the evidence, we are convinced that the two parties contributed to the acquisition and development of the suit property which led to their proprietary rights. These proprietary rights arose out of a constructive trust. The Black’s Law Dictionary 9th Edition at pg. 1649 denes a constructive trust as “the right, enforceable solely in equity, to the benecial enjoyment of property which another person holds the legal title. In England, courts have long recognized that common intention of the parties at the time of purchase is sucient to give rise to a constructive trust, which can be inferred from conduct other than making nancial contributions to cohabitees.” 29. The conduct of the parties during the transaction, in our view, met the threshold for the establishment of a constructive trust. The appellant’s father conceded, during the tribunal proceedings, that he signed the application for consent on 27th October 1982 and consent was also granted for the subdivision and transfer of the land. The conduct of the appellant’s father of receiving money, executing the application for consent at the Land Control Board, obtaining the consent to subdivide and allowing the respondents’ father to take passion of the land proved that he held the land for the benecial of the respondents. It is also important to note that the appellant does not deny that the respondents have been living on the suit land even at the time that their father was alive. Clearly, from the evidence, the parents of the parties attended the land board meeting, signed the application for consent and the consent to subdivide and transfer was given. The appellant’s father proceeded to subdivide the land and that is how the two titles were created. 30. It is also clear to us, from the sequence of events, that the appellant’s father took advantage of the death of the respondents’ father before completion of the transaction to transfer the property into his own name, thus unjustly enriching himself. In our view, this imputes fraudulent action on the appellant’s part. We are guided by the opinion of Mukasa- Kikonyogo, DCJ in Katende Vs Haridas and Company Limited [2008] 2 EA 173 that; “ Fraud can be participatory which means the party participates in fraudulent dealings. However, fraud can be imputed on a person, that is when he or she was aware of the fraud and condoned it, or beneted from it or used it to deprive another person of his rights. In short all those who actually participate in the fraudulent transaction and who had knowledge of it are privy and have notice of fraud.” 31. In our view, the learned Judge correctly opted to nullify the transfer and registration of the parcel of land known as Lembus/Metipso/50 in the appellant’s father’s name. The totality of the evidence https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1692/eng@2026-09-25 6

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shows that the appellant’s father’s action of registering the title in his name was an act of unjust enrichment. Taking all the facts in totality, we agree with the nding by the trial Judge that there existed a constructive trust. 32. Accordingly, we nd that all the grounds of appeal have no merit. 33. The upshot is that the appeal is dismissed with costs to the respondents. DATED AND DELIVERED AT ELDORET THIS DAY 25TH OF SEPTEMBER, 2026. M. GACHOKA C.Arb, FCIArb. JUDGE OF APPEAL ...................................... W. KORIR JUDGE OF APPEAL ...................................... L. M. NDOLO JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1692/eng@2026-09-25 7

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