Salesio M'itonga v M'arithi M'athara, Raphael Mwebia, Phineas Kimathi Arithi & Silas Muriungi (Civil Appeal 6 of 2013) [2015] KECA 772 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that claiming land is held in trust for you requires solid proof—simply living on or farming the land proves nothing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Did the appellant prove the existence of the alleged trust?
- 2.Did the High Court properly exercise its duty as the first appellate Court?
Key legal issues
#Whether the appellant proved the existence of a trust in his favour over a portion of the original parcel
The appellant did not prove the creation or existence of the alleged trust; the burden lay on him and mere possession, planting of tea bushes, or the fact that a father's parcel was registered in his name did not discharge it.
Trust is a question of fact to be proved by evidence. The appellant failed to explain why the original parcel was registered in the 1st respondent's name when both he and his father witnessed the registration. Possession and planting tea bushes did not by themselves establish a trust, and PW2's evidence lacked probative value as he never discussed the parcel with the parties' father. Section 116 of the Evidence Act was inapplicable because the appellant, as the party claiming a trust, bore the burden of proving it.
Whether the High Court properly exercised its first appellate duty in re-evaluating the evidence and setting aside the trial court's judgment
The High Court properly exercised its jurisdiction as the first appellate court by re-evaluating the evidence and reaching its own conclusion, in line with the cautionary principles in Peters vs Sunday Post.
A first appellate court has jurisdiction to review the evidence to determine whether the trial court's conclusion should stand, though it should be exercised with caution. The High Court correctly found that the appellant's evidence was contradictory and that he did not adduce evidence to prove the trust to the required standard. The Court of Appeal, confined to questions of law on second appeal, found no basis to disturb that conclusion.
Legal principles established
#- In a second appeal, the Court of Appeal's jurisdiction is confined to matters of law and it must not interfere with findings of fact by the courts below.
- A party alleging the existence of a trust over registered land must prove it by credible evidence; mere possession or utilization of the land does not establish a trust.
Court orders
#- 1.Appeal dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Meru
- H.C.C.C. No. 20 of 2009
- Jurisdiction invoked
- Second appeal under Section 72(1) of the Civil Procedure Act, Chapter 21, Laws of Kenya, confining the Court to matters of law
Relief refused
#Setting aside the High Court judgment and reinstating the trial court's finding of a trust over 3 acres of Abogeta/U-Kithangari/28
The appellant failed to prove the existence and creation of the alleged trust, and the High Court properly exercised its first appellate jurisdiction
Costs
Appeal 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 we find no merit in this appeal and it is hereby dismissed with costs to the respondent.
Mere utilization of the land is not proof of the existence of a trust.
In this case, the appellant filed suit claiming existence of a trust therefore, the burden of proof lay with him to prove the existence of the same. We find that Section 116 of the Evidence Act is not applicable in this case.
It is trite law that trust is a question of fact and has to be proved by evidence.
In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts.
Issues in the judgment
#Internal inconsistency on the date of the High Court judgment: the opening paragraph states the judgment was dated 3rd March, 2012 while the appeal-from heading states it was dated 3rd March, 2013.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Dionecia Ciandeke v Ndururu Nyaga [2020] KEELC 2820 (KLR)[2020] KEELC 2820 (KLR)5 May 2020
Cite this brief
#Cite this brief
Caselaw, "Salesio M'itonga v M'arithi M'athara, Raphael Mwebia, Phineas Kimathi Arithi & Silas Muriungi (Civil Appeal 6 of 2013) [2015] KECA 772 (KLR)", Case Analysis (2014). Civil Appeal No. 6 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/772/eng@2015-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.