Samuel Gichina Muiruri v Evanson Kimemia [2002] KECA 291 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that land registered in one person's name can still belong partly to someone else under an unwritten agreement.
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 learned Judge erred in finding that a trust existed over the suit land
- 2.Whether the respondent's claim was time barred by the Limitation of Actions Act
- 3.Whether the learned Judge erred in her evaluation of the evidence
Key legal issues
#Existence of an implied trust over registered land
The trial judge correctly found that the appellant held one-half of the 51 acres as trustee for the respondent; a trust can be implied from circumstances and need not be in writing.
The respondent's claim was based on trust, not a written sale agreement. The appellant bought the Rimuko Farm share with the respondent's contribution of Shs.9,750/= on a clear understanding that the respondent was entitled to half, in order to circumvent the 'rule of ten' limiting Rimuko Company membership. The trial judge's finding, supported by the advocate's evidence, could not be disturbed.
Limitation of Actions Act defence
The limitation defence could not be entertained on appeal because it had been fully argued and dismissed by Tanui J in a ruling against which no appeal was filed.
The preliminary objection based on the Limitation of Actions Act was argued before Tanui J, who dismissed it because it required ascertainment of facts about possession and a related dispute. No appeal was lodged against that ruling, so the Court of Appeal could not revisit it; the objection also failed under the Mukisa Biscuit principle since facts had to be ascertained.
Appellate interference with findings of fact
The Court declined to interfere with the trial judge's assessment of witness credibility and evaluation of evidence.
Applying Peters v Sunday Post, the Court reviewed the evidence and concluded the trial judge could not be faulted; it would have reached the same conclusion. Reversal of credibility-based findings founded on seeing and hearing witnesses is not justified absent misapprehension of facts or overlooked evidence.
Legal principles established
#- A party relying on the existence of a trust must prove through evidence the existence and creation of such a trust; a trust need not be in writing and may be implied from the circumstances.
- An appellate court will rarely interfere with findings of fact made by a trial judge who saw and heard the witnesses, unless there was a misapprehension of facts or overlooked evidence.
- A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained.
- A determination on a point of law made in a ruling in the court below, against which no appeal was brought, cannot be entertained in a subsequent appeal.
Court orders
#- 1.The appeal is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- NKR. H.C.C.C. No. 240 of 1990
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (implied statutory appellate jurisdiction; no specific provision cited in the judgment)
Relief refused
#Appellant's request that the High Court judgment be reversed on the existence of a trust, limitation and evaluation of evidence
The trial judge fell into no error; the Court would not interfere with findings of fact and the limitation point was not appealable as no appeal lay against Tanui J's ruling
Costs
The appeal was dismissed with costs to the respondent
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.
The upshot of the foregoing is that this appeal must fail and is accordingly dismissed with costs.
We conclude this judgment by stating that the learned trial judge fell into no error in her findings on the issues of fact and law. We have no valid justification in interfering with her findings both on facts and the law. In our view she reached a correct decision.
This Court would rarely interfere with findings of fact made by a trial Judge who had the advantage of seeing and hearing the witnesses, unless it is satisfied that there was a misapprehension of the facts on the part of the trial Judge or that he/she overlooked some evidence having a bearing upon the case.
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
There is no need for a sale agreement between the defendant and the plaintiff as the relationship alleged and found to exist between them is not one of buyer and seller but that of trustee and beneficiary and there is no provision that the creating of a trust must be in writing. A trust can be implied from the circumstances of the case.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Gichina Muiruri v Evanson Kimemia [2002] KECA 291 (KLR)", Case Analysis (2002). Civil Appeal No. 65 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/291/eng@2002-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.