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Court of AppealDismissedCivil Appeal No 7 of 2017

Titus Kuto Kipungar v Selina Tamining & 3 others [2019] KECA 388 (KLR)

Court of Appeal
25 July 2019
2,596 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that long family occupation can create a constructive trust that overrides a registered land title.

What this practically means

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Executive summary

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The appellant, administrator of the estate of his late father Sangara and registered proprietor of LR No West Pokot/Siyoi/263, sued the respondents - the widow and children of Sangara's brother Kukwai - seeking their eviction from a half-acre portion. The respondents denied invading the land and counterclaimed that the appellant held it in trust for them. The Environment and Land Court (Obaga, J.) found the suit misconceived, imputed a trust, ordered it terminated, cancelled the appellant's title and directed issuance of titles in equal shares. The appellant appealed, contending that no trust was pleaded or proved, that the counterclaim was incompetent absent letters of administration for Kukwai's estate, that fraud claims were time-barred, and that he had acquired title by transmission. The Court of Appeal, as a first appellate court, re-evaluated the evidence and found as a fact that the respondents had occupied the land since 1962, the appellant having conceded in cross-examination that Kukwai lived on the property before he was born and that his father never sought to evict him. Applying Peter Ndungu Njenga v Sophia Watiri Ndungu, the Court held that the parties' intention to share the land was clearly established, that registration was immaterial, and that the appellant was a constructive trustee. The counterclaim was properly entertained since the respondents were sued personally and justice is to be administered without undue regard to procedural technicalities under Article 159(2)(d) of the Constitution. The appeal was dismissed with costs to the respondents.

Questions the Court framed

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

  1. 1.Whether the trial court erred in finding that the respondents had been in occupation of the suit property since 1962 rather than invading it in 2010
  2. 2.Whether the appellant held the suit property in trust for the respondents
  3. 3.Whether the trial court erred in entertaining the defence and counterclaim when none of the respondents had taken out letters of administration for the estate of Kukwai
  4. 4.Whether the appeal should be allowed and eviction orders granted

Key legal issues

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01

First appeal - duty to re-evaluate evidence

Holding

The Court re-evaluated the evidence and found no misapprehension by the trial judge.

Reasoning

As a first appeal, the Court was obliged to re-evaluate and re-analyse the evidence and reach its own conclusion. It found that the respondents, including Selina and her late husband, had occupied the suit property since 1962, corroborated by the appellant's own concessions in cross-examination, and that the trial judge was entitled to disbelieve the claim of a 2010 invasion.

p. 2
02

Existence of a trust over registered land

Holding

A constructive trust arose in favour of the respondents notwithstanding the appellant's registered title.

Reasoning

Relying on Peter Ndungu Njenga v Sophia Watiri Ndungu, the Court held that a trust is only presumed in cases of absolute necessity to give effect to the parties' intention. The long-standing occupation by Kukwai's family, the absence of any eviction by Sangara during his lifetime, and Kukwai's litigation and caution demonstrated an intention to share the land, making the appellant a constructive trustee.

p. 3
03

Counterclaim without letters of administration

Holding

The counterclaim was properly entertained.

Reasoning

The respondents were sued in their personal capacities and claimed the appellant held the land in trust for them based on their own long occupation. The Court invoked Article 159(2)(d) of the Constitution, holding that justice should be administered without undue regard to procedural technicalities, so the absence of a grant was not fatal.

p. 3

Legal principles established

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  • A first appellate court must re-evaluate, re-assess and re-analyse the evidence and reach its own conclusions, while not ordinarily interfering with findings of fact unless they were based on misapprehension of the evidence or a wrong principle.
  • A court will not ordinarily presume a trust; it may only do so in cases of absolute necessity to give effect to the intention of the parties, and that intention must be clearly determined before a trust is implied.
  • Where a registered proprietor holds land subject to the intention of the parties that it be shared, he may be a constructive trustee and the registration does not vitiate the beneficiaries' right to the land.

Court orders

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  1. 1.Appeal dismissed with costs to the respondents

The bench

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

majority
majority
majority
On appeal from
Environment and Land Court
Environment and Land Case No 181 of 2013
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate statutes (not expressly stated in the judgment)

Relief refused

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Orders of eviction and demolition of houses and structures erected on the suit property

The court found the respondents had occupied the land since 1962 and that a constructive trust arose in their favour; eviction would cause injustice.

p. 3

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.

In the result, this appeal is without merit and it is dismissed with costs to the respondents.
p. 3Final orders - dismissal of appeal
The doctrine of constructive trust therefore comes into play to ensure that the respondents herein, as the rightful owners retain a portion of the suit property that Selina has been occupying since 1962.
p. 3Constructive trust over registered land
The fact that the suit property is registered in the appellants’ name is immaterial and does not vitiate the respondents’ right to the suit property as the appellant remains a constructive trustee in regard to the suit property.
p. 3Effect of registration where trust exists
The intention of the parties to create a trust must be clearly determined before a trust is implied.
p. 3Presumption of trust

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, "Titus Kuto Kipungar v Selina Tamining & 3 others [2019] KECA 388 (KLR)", Case Analysis (2019). Civil Appeal No 7 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/388/eng@2019-07-25

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