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Court of AppealDismissedCivil Appeal No. 2 of 2016

Festo Oyengo Obonyo v Miriam Namutibwa Oketch & 2 others [2019] KECA 27 (KLR)

Court of Appeal of Kenya
30 December 2019
3,063 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled a man who self-transferred family land without proper documents held half of it in trust for his late brother's widow.

What this practically means

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Executive summary

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The appellant, registered proprietor of Kisa/Emasatsi/1202, sued the respondents for eviction and a permanent injunction, alleging they had entered and demarcated his land. The 1st respondent, widow of the appellant's deceased twin brother, counter-claimed that the land belonged to her father-in-law, who had divided it between his two sons; she had occupied her half share since the 1990s, and the appellant had fraudulently transferred the property to himself after the father's death without obtaining letters of administration. The High Court at Kakamega (Chitembwe, J) dismissed the suit, granted the counter-claim, ordered surrender of the title deed and subdivision into two equal portions. On appeal, the Court of Appeal at Kisumu re-evaluated the evidence as a first appellate court. It found no documentation supporting the appellant's transfer from his deceased father, so his title could not stand. Applying Macharia Mwangi Maina and Mwangi v Mwangi, the Court held that the absence of a trust reference in the register does not affect enforceability, the statutory reference being merely permissive. The 1st respondent's long occupation, permitted by the deceased, meant the appellant held half the property in trust for her and her children; his self-registration was a breach of trust. The appeal was dismissed with costs and the trial court's orders, including subdivision by the Kakamega Land Registrar and Surveyor, were upheld. Judgment was delivered by Mohammed, JA, with Okwengu, JA concurring, Githinji, JA having retired.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the conclusions of the trial court should stand on re-evaluation of the evidence as a first appellate court
  2. 2.Whether the appellant's title to the suit property could stand absent documentation showing how the transfer from his deceased father was effected
  3. 3.Whether the appellant held a portion of the suit property in trust for the 1st respondent and her children

Key legal issues

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01

Standard of review on first appeal

Holding

The Court re-evaluates and re-assesses the record and determines whether the trial court's conclusions should stand, allowing for the fact it neither saw nor heard the witnesses.

Reasoning

The court cited its established role as a first appellate court, emphasising that it must rule only on matters appearing on the record since it did not have the advantage of observing witness demeanour. This framed the entire review of the High Court judgment.

p. 3
02

Validity of the appellant's title

Holding

The appellant's title could not stand because there was no documentation showing how he effected the transfer and registration from his deceased father to himself.

Reasoning

The green card showed the property registered in the deceased father's name in 1966 and transferred to the appellant in 2009, but the appellant produced no documentation of the transfer, such as letters of administration. Without it, the transfer was without reference to the 1st respondent and could not stand.

p. 3
03

Implied trust over the suit property

Holding

The appellant held half the suit property in trust for the 1st respondent, who had occupied it with the deceased's blessing since her husband's death; the absence of a trust reference in the register is immaterial.

Reasoning

The court applied Macharia Mwangi Maina and Mwangi v Mwangi, holding that possessory and occupational rights are equitable rights binding on the land and the statutory reference to a trustee is permissive. The 1st respondent's long occupation, permitted by the deceased, established the trust, and the appellant's self-registration was a breach of trust.

p. 3

Legal principles established

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  • On a first appeal, the Court of Appeal's primary role is to re-evaluate and re-assess the record and determine whether the trial court's conclusions are to stand, making allowances for not having seen or heard the witnesses.
  • A trust may be implied by a court even where the title documents do not reference it; the reference to a trustee in the register is permissive, not mandatory.
  • The party alleging the existence of a trust must prove it; the court will not easily imply a trust, and only where the intention of the parties is clearly determined.

Court orders

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  1. 1.Appeal dismissed with costs to the respondents
  2. 2.Upheld the trial court's orders: 1st respondent entitled to a half share of plot number Kisa/Emasatsi/1202
  3. 3.Appellant directed to surrender the title deed of the suit property within thirty (30) days
  4. 4.Kakamega Land Registrar and Surveyor to visit the suit property and divide it into two equal portions, one to be registered in each party's name
  5. 5.Deputy Registrar of the High Court at Kakamega to sign all relevant documents to effect the transfer

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

Wrote a short concurring judgment fully adopting the reasoning and proposed orders of Mohammed, JA.

I fully concur with the reasoning of my sister Judge. The Learned Judge of the High Court properly considered the issues and came to the correct decision.p. 4
majority
On appeal from
High Court of Kenya at Kakamega
Environment and Land Case No. 49 of 2012
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules (Civil Appeal from the High Court)

Relief refused

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Appellant's claim for eviction and permanent injunction

The 1st respondent proved her claim; the appellant's title could not stand and he held half the property in trust for her

p. 4

Costs

Appeal dismissed with costs to the respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, I find no merit in this appeal and would accordingly dismiss it with costs to the respondents.
p. 4Disposition
(a) The 1st respondent is entitled to a half share of plot number Kisa/Emasatsi/1202;
p. 4Final orders
(c) The Kakamega Land Registrar and Surveyor to visit the suit property and divide it into two equal portions.
p. 4Final orders - subdivision
the absence of any reference to the existence of a trust in the title documents does not affect the enforceability of the trust since the reference to a trustee under Section 126 (1) of the Registered Land Act is merely permissive and not mandatory
p. 3Implied trusts over registered land
In the absence of such documentation showing how he effected this transfer, we are constrained to find that the appellant did not have the right to transfer the property to himself without any reference to the 1st respondent.
p. 3Invalid transfer of deceased's property
The concept of trust is not new. In case of absolute necessity, but only in case of absolute necessity, the court may presume a trust.
p. 3Presumption of trust

Issues in the judgment

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minor

Panel listed as three judges (Githinji, Okwengu & J. Mohammed) but Githinji, JA had retired before delivery and did not sign the judgment; judgment delivered by two judges under Rule 32(3).

minor

Judgment body refers to trust for the '2nd respondent' where the 1st respondent is evidently meant.

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, "Festo Oyengo Obonyo v Miriam Namutibwa Oketch & 2 others [2019] KECA 27 (KLR)", Case Analysis (2019). Civil Appeal No. 2 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/27/eng@2019-12-30

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