Kimwei Arap Samoei v Selly Jepchumba Samoei (suing On Behalf of The Estate of The Late Joseph Kisorio Samoei) & 3 others
The bottom line
#Kenya's Court of Appeal confirmed a brother holds family land in trust for his siblings, even though the title document bears his name only.
What this practically means
#Executive summary
#Key legal issues
#Whether the claim based on customary family arrangements required compliance with section 3(3) of the Law of Contract Act
No; section 3(4) expressly excludes resulting, implied and constructive trusts from the writing requirement
The claim was not a simple commercial transaction but a family dispute arising from customary arrangements. Section 3(4) of the Law of Contract Act expressly provides that subsection (3) shall not affect the creation or operation of a resulting, implied or constructive trust. Accordingly, the absence of a written sale agreement for the Lessos land did not defeat the respondents' trust claim.
Whether a trust was proved on the facts
Yes; the evidence formed a complete chain showing the appellant held the land in trust, engaging a constructive trust rather than a customary trust
The family land in Lessos was sold and the proceeds entrusted to the appellant and Shadrack Kemboi to buy land in Kitale. The occupation of the land by the appellant's father and siblings (confirmed by the appellant's own witness DW2), the uncontroverted occupation by the 1st respondent's family since 1980, and the handing over of family money formed a complete chain. Though the conflict begins with family land, the remedy shifts to a constructive trust because the asset was converted to the appellant's property.
Whether contradictions and hearsay in the respondents' evidence vitiated the trial court's findings
No; the contradictions were peripheral and the trial court relied on direct and circumstantial evidence, not hearsay
Inconsistencies about who received the money and precise dates were peripheral; the core fact that family money was used to acquire the land was consistently testified to by multiple witnesses, including the appellant's own witness DW3. PW7's evidence of what his mother told him was hearsay, but the trial court did not rely on it, there being direct evidence from PW4 who witnessed the handing over of the money.
Whether the order cancelling the appellant's title and registering the land in the name of the deceased was proper
The order was technically irregular but did not vitiate the judgment, having been overtaken by events and causing no substantial injustice
Following Dominic Musei Ikombo vs Kyule Makau, a deceased person cannot hold proprietary rights in land. The land was never registered in the deceased's name, so the order could not restore the status quo ante. The appropriate order would have been cancellation of the title and sharing among the deceased's children. However, the error was not traceable to a ground of appeal, the body had been buried and the estate was in succession proceedings, so no injustice resulted.
Legal principles established
#- The requirement of a written and attested agreement under section 3(3) of the Law of Contract Act does not apply to the creation or operation of a resulting, implied or constructive trust, including in family land disputes arising from customary arrangements
- Where family land is sold and the proceeds entrusted to one family member to purchase alternative land for the family, and that member registers the land in his own name, the court may impose a constructive trust even though the claim begins with customary/family land
- Minor or peripheral contradictions in a witness's evidence do not render it untrustworthy where the core fact is consistently testified to by multiple witnesses; a trial court's acceptance of such evidence, having observed demeanour, will not be disturbed on appeal
- On a first appeal, the Court's mandate is to re-evaluate the evidence on record and draw its own conclusions while bearing in mind that it did not see or hear the witnesses
- A deceased person cannot hold proprietary rights or any other interest in land; an order directing registration of land in the name of a deceased person is technically irregular, but the error does not vitiate the judgment where the core finding is sound and no substantial injustice is caused
Court orders
#- 1.The appeal is dismissed
- 2.The finding that the appellant held the suit property in trust for the family of the late Kipsongok Arap Chepkulei is affirmed
- 3.Each party to bear their own costs of the appeal
- 4.The order on costs issued by the trial court remains undisturbed
- 5.The estate of the deceased shall be distributed in accordance with the finding that the appellant held the title in trust for the respondents
- On appeal from
- Environment and Land Court at Kitale
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (not expressly specified in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimwei Arap Samoei v Selly Jepchumba Samoei (suing On Behalf of The Estate of The Late Joseph Kisorio Samoei) & 3 others", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1200/eng@2026-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.