UNDERSTANDING IMPLIED TRUSTS IN KENYA: PROPERTY HELD FOR ANOTHER

 A trust is when one person holds property, like land or money, for the benefit of someone else.  It’s not always a gift or transfer, sometimes the holder is simply safeguarding it. Trusts can be express, where the intention is clearly stated, or implied, where the court infers the intention from conduct or circumstances. 

Implied trusts are tricky because no formal declaration exists. In this post, I’ll be explaining this using the case of Mark Kiprotich Sirma v Sosten Kiplagat Singoei [2018] eKLR where the court stressed it must be absolutely certain the parties intended such a trust. This high threshold ensures property rights are not altered without clear and convincing evidence. 

FACTS OF THE CASE 

PLAINTIFF'S CLAIM 

The plaintiff, Mark Kiprotich Sirma, claimed to be the sole registered owner of land parcel Nandi/Kokwet/688, having purchased it from Jemaiyo Kogo (now deceased) in 1990. He obtained a title deed on August 5, 1994, vesting in him absolute ownership. Mark said he was being kind and just temporarily let his younger brother, Sosten (the defendant), live on the land because Sosten was still young and needed a place to stay while he found his own land. This arrangement was based on a memorandum of understanding that the defendant would vacate upon demand. 

The plaintiff testified that he asked the defendant to move out in 1998 as he planned to develop the land, but the defendant refused to vacate. Mark insisted he never sold or gave the land to Sosten or anyone else. He wanted the court to declare that he was the absolute owner, that Sosten was a trespasser (meaning he was on the land illegally) since 1998, and that Sosten should be evicted. He also wanted  mesne profits (meaning Sosten to pay for the time he had used the land illegally) and costs of the suit. 

A neighbor, Marcella, even testified for Mark, saying she knew Mark was the owner since 1990 and saw him bring Sosten to the land temporarily in 1997. She also mentioned Mark had built a house and other things there before Sosten moved in. 

DEFENDANT'S DEFENSE  

The defendant, Sosten Kiplagat, admitted the plaintiff was the registered proprietor but claimed to have been in peaceful occupation of the land. His main argument was that they (himself and Mark) had jointly put money together to buy the land, and Mark was just holding the title for him. He said they bought several pieces of land together. The defendant stated that he had been in possession long before the plaintiff was registered and that he had lived on the land with his wife since 1992. He did not have a written agreement because he trusted his brother.

The mother of both the plaintiff and defendant (DW2) corroborated the defendant's claim, stating that while the plaintiff bought the land, Sosten (defendant) gave him money for the purchase, and Mark (plaintiff) had never stayed on the land. She confirmed that the house on the land was built by Sosten and that she lives there with Sosten and her husband. 

LEGAL ISSUES 

• Whether the plaintiff was the absolute registered owner of Nandi/Kokwet/688 and therefore entitled to occupy and possess it.
• Whether the defendant's continued occupation constituted trespass from 1998.
• Whether the plaintiff was entitled to an eviction order, a permanent injunction, and mesne profits.
• Whether the plaintiff held the title to the land in trust for the defendant and their family, given the claims of joint contribution and family efforts in its acquisition. 

THE ENVIRONMENT AND LAND COURT'S HOLDING 

1.  The court declared that the plaintiff, Mark Kiprotich Sirma, is holding title to the property in trust for the family.
2. The plaintiff's suit was dismissed.
3. The court ordered no costs for the suit, characterizing it as a family dispute.
4. It further ordered that the status quo be maintained on the suit land, meaning things should stay as they are for now, with Sosten and his family continuing to live there.
5. The judge also noted that they couldn't fully decide how to dissolve (end) this family trust, like how to divide the land, because Sosten hadn't officially asked for that in his legal defense. 

COURT'S REASONING 

 The court acknowledged that the plaintiff was indeed the registered proprietor of the suit land, with the title deed issued on August 5, 1994. It referred to Article 40 of the Constitution of Kenya 2010, which guarantees the right to acquire and own property, and sections of the Land Registration Act (No. 3 of 2012). Specifically, Section 24(a) vests absolute ownership upon registration, and Section 26(1) states that a certificate of title is prima facie evidence of absolute and indefeasible ownership. However, the court noted that a title can be challenged on grounds of fraud, misrepresentation, illegal, unprocedural, or corrupt acquisition. 

 The court found the plaintiff's explanation of how he obtained the title to be unclear. It noted that while the plaintiff was a co-petitioner in a succession case for Jemaiyo Kogo's estate, no grant of letters of administration was produced. A letter from the chief indicating the plaintiff's ownership did not explain how the title was obtained. The sale agreement produced by the plaintiff was between Moses Kiprotich Muge (vendor) and Peter Kirwa Cherwon (purchaser), not the plaintiff, and did not directly refer to Nandi/Kokwet/688 as subdivided from 623. 

On the other hand, the judge found the testimonies of Sosten and especially their mother to be very believable and truthful. The mother's honest way of speaking convinced the judge that she was telling the truth about Sosten giving Mark money for the land and Sosten building the house and living there with her and her husband. 

 Because of the strong evidence from Sosten and the mother about joint family contribution to buy the land and Sosten's actual long-term occupation and development of it, the court concluded that this situation was an implied trust. This means that even if Mark's name was on the title, he was holding the land for the benefit of the family, not just for himself. 

LEGAL PRINCIPLES ESTABLISHED  

• A Title Deed Isn't Always the Final Word: While having a registered title deed usually means you're the absolute owner, (Section 24(a) of the Land Registration Act), this case shows that a title can be challenged. If someone got the title through fraud, misrepresentation, or an illegal process (Section 26(1) of the Land Registration Act), the court can question it. It's like having a receipt, but if someone says you stole the item, the receipt isn't the only thing that matters. 
• Implied Trust: Even if there's no written agreement, a court can decide that someone holds land "in trust" for others. This often happens in families where people contribute money or effort together to buy land, but it's registered in just one person's name. The person on the title then has a legal duty to hold it for the benefit of those who contributed. 
• Burden of Proof: The plaintiff, as the party asserting absolute ownership and seeking eviction, bore the burden of clearly proving his acquisition of title, which the court found he did not do adequately when confronted with evidence of joint family effort. 

So, in simple terms, even though Mark had the official paper, the court looked deeper into how the land was bought and who really contributed. Because of the family's joint effort and the mother's clear testimony, the court decided Mark was just holding the land in trust for the family, and he couldn't just kick his brother out. 

In the next post, I’ll be diving into the case of Peter Ndungu Njenga v Sophia Watiri Ndungu [2000] eKLR for a deep dive on how the court approaches implied trusts. This case shows that the standard for proving an implied trust is very high, and courts will only presume it when absolutely necessary and supported by clear, convincing evidence. 

 

 

 

Disclaimer- The information provided is for general informational purposes only and should not be considered as professional advice. Please consult a qualified professional for specific guidance. 

REFERENCES 

Mark Kiprotich Sirma v Sosten Kiplagat Singoei (Environment & Land Case No. 491 of 2013) [2018] KEELC 4498 (KLR) (delivered 25 January 2018)