https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1200

Samoei v Samoei (Suing on Behalf of the Estate of the Late Joseph Kisorio Samoei) & 3 others (Civil Appeal E123 of 2021) [2026] KECA 1200 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KECA 1200 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Appeal E123 of 2021 PM Gachoka, WK Korir & L Ndolo, JJA June 26, 2026 Between Kimwei Arap Samoei Appellant and Selly Jepchumba Samoei (Suing on Behalf of the Estate of the Late Joseph Kisorio Samoei) 1st Respondent David Kimtai Mwei 2nd Respondent James Kimaru Songok 3rd Respondent William Some Songok 4th Respondent (Being an appeal from the judgment and decree of the Environment and Land Court at Kitale (Mwangi Njoroge, J.) dated 27th February 2020 in ELC Case No. 45 of 2019) Judgment 1.This is a first appeal arising from a family land dispute. The parties are all siblings, being sons of the late Chepkulei Kipsongok Arap Korir also known as Kipsongok Arap Chepkulei. The appellant, Kimwei Arap Samoei, was the registered proprietor of a land parcel known as Kitale Municipality Block 15/Koitogos/246 measuring approximately 5 acres (hereinafter “the suit property”). The respondents, his brothers, brought suit against him in the Environment and Land Court (ELC) at Kitale, seeking a declaration that the appellant holds the suit property in trust for the family. 2.The background of the dispute is that the respondents claimed that their late father sold family land in Lessos, Nandi County sometime between 1969 and 1971 and entrusted the proceeds to the appellant to purchase alternative land in Kitale for the benefit of the entire family. The appellant purchased 10 acres of unsurveyed land in Koitogos, but before obtaining title, he sold 5 acres without the family's consent. In 1993, he processed and obtained title for the remaining 5 acres in his name. The respondents’ case was that Joseph Kisorio Samoei, who was the 1st plaintiff at the trial, had lived on the suit property with his family from 1980. When the 2nd, 3rd and 4th respondents sought to return and settle on their portion of the land in 2009, the appellant denied them access. 3.The respondents claimed that the appellant held the suit property in trust for them, a claim denied by the appellant. On his part, the appellant contended that he purchased the suit property from his own savings earned from working as a tractor driver and from maize trading. He stated that he allowed the 1st respondent to stay on the land out of brotherly love, but that did not confer any proprietary rights. He filed a counterclaim seeking the respondents' eviction from the suit property. 4.During the pendency of the suit, Joseph Kisorio Samoei died on 20th January 2020 and was substituted by his widow and administratrix of his estate, Selly Jepchumba Samoei, who is now the 1st respondent in the appeal. Following the demise of Joseph Kisorio Samoei, an amended plaint was filed seeking, inter alia, an order that his body be interred in the suit property. The appellant objected to this prayer. 5.Upon hearing the parties, the trial court entered judgment for the respondents and made a declaration that the appellant held title No. Kitale Municipality Block 15/Koitogos/246 in trust for the respondents and members of the family of the first wife of the late Kipsongok Arap Chepkulei. The court cancelled the title in the name of the appellant and ordered that all the land comprised in the title be registered in the name of the Estate of the late Kipsongok Arap Chepkulei. The court also held that the family of the late Joseph Kisorio Samoei was entitled to bury his remains on the suit property and condemned the appellant to meet the costs of the suit. 6.Dissatisfied with the judgment, the appellant has moved this Court raising 10 grounds, which we reproduce verbatim here below:“i.The trial judge erred in law and in fact in failing to consider and appreciate the Appellant’s evidence.ii.The trial judge erred in law and in fact in failing to appreciate that the Respondents evidence was not credible and the Respondents had not established their case against the Appellant on a balance of probability as required by law.iii.THE trial judge erred in law and in fact in failing to appreciate that the burden of proof lay squarely on the Respondents.iv.The trial judge erred in law and in fact by failing to consider the cogent evidence of the Appellant.v.The trial judge erred in law and in fact in holding that the Respondents proofed their claim of resulting trust without any tangible and cogent evidence to support the same.vi.The trial judge erred in law and in fact by failing to observe the rules of evidence and allowing the Respondents claim without any documentary evidence but relied on hearsay and stories.vii.The trial judge erred in law and in fact in selectively using the documents and evidence produced by the Appellant in his judgement and in some instances using the Appellants documents to proof the Respondents case.viii.The trial Judge erred in law and in fact in making inferences, propositions, speculations, emotions, stories and hearsay without proper, tangible and cogent evidence and in the Respondents pleadings to support the same.ix.The trial judge erred in law and in fact in mis- applying the rules of engagement in civil litigation by extrapolating the Respondents pleadings to the detriment of the appellant's case.x.The trial judge erred in law and in fact in not applying properly the provisions of section 107 and 109 of the evidence Act cap 80 Laws of Kenya concerning the Respondents evidence in the superior Court.” 7.As this is a first appeal, our mandate as restated in a long chain of authorities from this Court is to re-evaluate the evidence on record and draw our own conclusions, while bearing in mind that unlike the trial court we did not have the advantage of seeing and hearing the witnesses. (See Selle vs. Associated Motor Boat Co. [1968] EA 123). To deliver on this mandate, it is imperative that we rehash the evidence adduced at trial. 8.Selly Jepchumba Samoei (PW1) testified that she was the widow of the deceased Joseph Kisorio Samoei. It was her evidence that she married him in 1979, and that the appellant was present at the “Koito” (engagement) ceremony at her parents’ home. She stated that when her parents asked the appellant where the couple would live after marriage, the appellant answered that there was family land in Kitale. They moved to the suit property in 1980 and had lived there since, and all her children were born there. She produced birth certificates for her children and photographs of her homestead. She stated that the appellant later objected to the interment of her husband on the land. Under cross-examination, she admitted she was not present when the suit land was purchased and did not know the purchase price. 9.Leah Jemanyur Busienei (PW2) testified that she raised Joseph Kisorio Samoei from age 12 and that she was present at the “Koito” ceremony and heard the appellant tell PW1’s father that there was family land in Kitale where the couple would live. She stated that the family land in Lessos was sold and the proceeds were used to buy the Kitale land. She conceded that she was already married in 1967 and was therefore not privy to the actual purchase transaction. 10.Next in line was Julius Chirchir Kipkemei (PW3), who stated that he was a neighbor to the disputing family. It was his evidence that he was an area representative of Koitogos Farm Ltd in 1974 and 1975 and that he allocated the appellant 10 acres. He stated that the appellant’s father, stepmother, and brothers lived on the suit property as a family. He further stated that he participated in a Chief’s meeting where the dispute between the appellant and Joseph Kisorio Samoei was resolved, and the father stated that the land belonged to him and should be shared among his five sons. 11.Mary Rongoe Chematia (PW4) testified that in 1971, the appellant returned from the Kitale Agricultural Show and proposed that the family sell their land in Lessos to buy land in Kitale. She stated that she saw her father give money to Shadrack Kemboi and the appellant to purchase land. It was her evidence that she was 11 years old at the time. When pressed under cross-examination as to whether the money was given to Kemboi alone or to both Kemboi and the appellant, she appeared not to be clear on who between the two was given the money. 12.William Some Songok (PW5), the 4th respondent, testified that he lived with his aunt Maria at Kiplombe. He stated that his father sold 5 acres of land in Lessos to Arap Lengwet and gave the appellant money to buy land in Kitale. On cross-examination, he admitted that he never lived on the suit property and did not know the details of the purchase of the suit property. 13.James Kimaru Songok (PW6), the 3rd respondent, testified that he lived with the 2nd respondent in a house on the suit property and left in 1984 for employment in Nyahururu. He stated that in 1992, he returned to find that the appellant had demolished their house. He stated that the land was bought with proceeds from the sale of ancestral land in Lessos. 14.Finally, David Kimtai Mwei (PW7), the 2nd respondent, testified that his mother told him in 1971 that their father had sold land and given money to the appellant and Shadrack Kemboi to buy land in Kitale. He moved to Kitale in 1972 and built three houses: one for himself and James, one for their father, and one for the appellant. He left in 1987 after a dispute with the appellant. He returned in 1992 to find his house demolished. 15.In support of the defence case, the appellant testified as DW1 stating that he left home in 1964, worked in Nyahururu as a tractor driver, and later engaged in maize trading. He averred that he had saved money and, in 1972, purchased the suit property using his own funds. According to him, neither his father nor his brothers contributed to the purchase of the land. He admitted that he sold 5 of the original 10 acres without seeking his family's consent. He denied that his father or his brothers ever lived on the suit property. His testimony was that he allowed his deceased brother Joseph Kisorio Samoei to stay on the property as a licensee, and not as a co-owner. He produced the title deed in his name and receipts for processing the title. He objected to Joseph Kisorio Samoei being buried on his land. 16.Noah Mortis Arap Bett (DW2) stated that he was a neighbour. It was his evidence that he was a member of the Koitogos Farm Committee. He stated that the appellant was allocated 10 acres. The witness recalled a dispute before the Assistant Chief in which the 4th respondent complained that the land was family land. According to DW2, when the father of the appellant and the respondents were summoned, the appellant’s father denied owning the suit land. In cross-examination, the witness conceded that the appellant’s father, stepmother, and two brothers lived on the suit property for some time. He also admitted that the appellant’s sisters, Mary and Anna, lived there until they got married. 17.Jeremiah Ngetich (DW3) testified that he was a treasurer during the survey of Koitogos Estate. He stated that the appellant was not a shareholder but contributed money through Shadrack Kemboi. After a dispute with Kemboi, the appellant exchanged land with Isaiah Ngetich and moved to the current suit property. He testified that he did not know the appellant’s family members and could not testify about their occupation of the land. 18.When the appeal came up for hearing before us on 22nd April 2026, learned counsel Mr. Ogutu appeared for the appellant, while learned counsel Mr. Ombaso held Mr. Barongo’s brief for the respondents.Counsel opted to rely on their respective written submissions to argue the appeal. 19.Urging the appeal, learned counsel Mr. Ogutu submitted that the trial Judge erred by framing an issue not arising from the pleadings, namely, whether the land was held in trust for the family of the late Chepkulei, yet the estate of Chepkulei was not a party. Counsel argued that the respondents did not plead that they had contributed to the purchase price, but only that their father gave money to the appellant. According to counsel, without letters of administration over their father’s estate, the respondents could not claim through him. It was also his submission that the respondents failed to prove any sale of land in Lessos, contending that no written sale agreement was produced as required by section 3(3) of the Law of Contract Act. Counsel further relied on the case of Gachuma Gacheru vs. Maina Kabuchwa [2016] eKLR where it was held that glaring inconsistencies in evidence render a witness untrustworthy. 20.Additionally, Mr. Ogutu submitted that the trial Judge erred in cancelling the appellant’s title and ordering registration in the name of the deceased Chepkulei. Relying on Dominic Musei Ikombo vs. Kyule Makau [2019] eKLR, counsel asserted that a deceased person cannot hold proprietary rights in land, and the land could only be transferred to legal representatives. Further, it was counsel’s submission that the respondents did not prove the existence of a resulting trust with cogent evidence, as per the holding in Susan Mumbi Waititu vs. Mukuru Ndata & 4 Others [2007] eKLR that a resulting trust must be proved. Counsel urged us to allow the appeal, set aside the judgment of the Environment and Land Court and grant the appellant’s counterclaim for eviction. 21.In opposition to the appeal, learned counsel Mr. Ombaso for the respondents submitted that the trial court properly found that the appellant held the suit property in trust for the family. In support of the argument, counsel relied on Kiebia vs. M’lintari & Another [2018] KESC 22 (KLR), where the Supreme Court declared that the categories of customary trust are not closed, and the court must make a determination on the basis of evidence as to which category of trust subsists. Counsel also cited Hatayan & Another vs. Al- Heidy & 5 others [2015] KECA 713 (KLR) to urge that a resulting trust will automatically arise in favour of the person who advances the purchase money, whether or not the property is registered in their name. Mr. Ombaso further submitted that the evidence on record, particularly the testimony of PW4 that she saw her father give money to the appellant and Shadrack Kemboi, and the corroboration by DW2 that the appellant’s father, stepmother, and siblings lived on the land, sufficiently established a resulting trust. Counsel prayed that the appeal be dismissed with costs. 22.Living to our mandate to reconsider the evidence and arrive at our independent decision, we have given due consideration to the record of appeal, the submissions and the authorities referenced by counsel. In our view, the following issues fall for determination in this appeal: whether the respondents proved, on a balance of probabilities, that the appellant held the suit property in trust for the family; whether the trial court erred in its analysis of the evidence, particularly regarding contradictions and hearsay; and, whether the reliefs granted, including cancellation of title and registration in the name of a deceased person, were proper. We address these issues consecutively. 23.The appellant contends that the respondents failed to prove any contribution to the purchase price and that the alleged sale of land in Lessos was not proved by a written agreement. We do not agree, as in our view the trial court correctly noted this exception. The claim before the trial court was not a simple commercial transaction but a family dispute arising from customary arrangements. The requirement under section 3(3) of the Law of Contract Act for a written and attested agreement for the disposition of an interest in land does not apply to the creation or operation of a resulting, implied or constructive trust. Section 3(4) of the Act expressly provides:“Subsection (3) shall not apply to a contract made in the course of a public auction nor shall anything in that subsection affect the creation or operation of a resulting, implied or a constructive trust.” 24.The Supreme Court in Kiebia vs. M’lintari & Another (supra) settled the law on customary trusts when it held that:“The categories of a customary trust are therefore not closed. It is for the court to make a determination, on the basis of evidence, as to which category of such a trust subsists as to bind the registered proprietor.Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in Kiarie v. Kinuthia, that what is essential is the nature of the holding of the land and intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are:1.The land in question was before registration, family, clan or group land;2.The claimant belongs to such family, clan, or group3.The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous.4.The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances.5.The claim is directed against the registered proprietor who is a member of the family, clan or group.” 25.In our view, the specific scenario in the appeal before us triggers a constructive trust rather than a customary trust, although it is heavily rooted in breach of family obligations. While the conflict begins with ancestral/family land, the legal remedy shifts because the original land was sold and the asset converted from family land to the appellant’s property. That is where the issue of constructive trust comes in. All along, the land never belonged to the appellant since he held it in trust for the rest of the family members. In Hatayan & Another vs. Al-Heidy & 5 others (supra), the Court discussed the types of trusts as follows:“Trusts are created either expressly (by the parties) or by operation of law. An express trust arises where the trust property, its purpose and beneficiaries have been clearly identified (see. Halsbury’s Laws of England vol 16 Butterworths 1976 at para 1452). In this case, we have a definite property and beneficiary. The purpose/intent for which the property was bought remains in dispute. This negates the existence of an express trust herein. In the absence of an express trust, we have trusts created by operation of the law. These fall within two categories; constructive and resulting trusts. Given that the two are closely interlinked, it is perhaps pertinent to look at each of them in relation to the matter at hand. A constructive trust is an equitable remedy imposed by the court against one who has acquired property by wrong doing. (see Black’s Law Dictionary) (Supra). It arises where the intention of the parties cannot be ascertained. If the circumstances of the case are such as would demand that equity treats the legal owner as a trustee, the law will impose a trust. A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position for his own benefit (see. Halsbury’s Laws of England supra at para1453). As earlier stated, with constructive trusts, proof of parties’ intention is immaterial; for the trust will nonetheless be imposed by the law for the benefit of the settlor. Imposition of a constructive trust is thus meant to guard against unjust enrichment. In the present case, a constructive trust cannot be imposed or inferred since the suit premises were yet to be transferred to the third party. Therefore, there is no unjust enrichment to be forestalled.This leaves us with resulting trusts; upon which the appellants had laid their claim. A resulting trust is a remedy imposed by equity where property is transferred under circumstances which suggest that the transferor did not intend to confer a beneficial interest upon the transferee (see Black’s Law Dictionary) (supra). This trust may arise either upon the unexpressed but presumed intention of the settlor or upon his informally expressed intention. (See Snell’s Equity 29th Edn, Sweet & Maxwell p.175). Therefore, unlike constructive trusts where unknown intentions maybe left unexplored, with resulting trusts, courts will readily look at the circumstances of the case and presume or infer the transferor’s intention. Most importantly, the general rule here is that a resulting trust will automatically arise in favour of the person who advances the purchase money. Whether or not the property is registered in his name or that of another, is immaterial (see. Snell’s Equity at p.177) (supra).” 26.Applying the principles underpinning constructive trust to the facts of the appeal, the land before registration was family land. The respondents' evidence, though containing minor inconsistencies, was largely consistent with the core narrative. It was clear that the family had land in Lessos, which was sold, and the proceeds entrusted to the appellant and Shadrack Kemboi to purchase land in Kitale. The respondents’ evidence was also cogent that the suit property was acquired for the family. PW4 testified that she saw her father give money to Kemboi and the appellant. While her testimony had some inconsistencies about who exactly received the money, she was consistent in stating that the money was for the purchase of Kitale land for the family. The trial court, which had the advantage of observing her demeanour, accepted her evidence as credible. We see no reason to disturb that finding, more so when there is affirming testimony from other witnesses. For instance, Jeremiah Ngetich (DW3) testified that the appellant was not a shareholder but contributed money through Shadrack Kemboi, thus confirming PW4’s testimony that their father gave the money for purchase of the land to the appellant and Shadrack Kemboi. 27.It is also worth pointing out that the appellant’s own witness, DW2, contradicted the appellant’s evidence that his father and siblings did not live on the suit property. DW2 expressly admitted under cross- examination that the appellant’s father, stepmother, and two brothers (David and James) lived on the suit property. This corroboration by the appellant’s own witness deals a fatal blow to the appellant’s case. There was no dispute that the respondents belonged to the Chepkulei family and that they could have been registered as beneficiaries but for the appellant’s unilateral registration. The registered proprietor is a family member. We therefore agree that the trial court correctly found that a trust existed. At the risk of repetition, just like the trial court, we agree that there is enough evidence that the appellant held the land in trust for the family. The 1st respondent and her family moved into the suit land in 1980. She and her family have lived on the land since then. There is uncontroverted evidence that the appellant’s father and his family also stayed on the land for some time before moving out. The occupation, the evidence on the sale of the family land in Lessos and the giving of the money to the appellant form a complete chain that demonstrates that the appellant is holding the suit land in trust. Just like the trial court, we agree that the appellant received the money from his father, but he registered the land in his name. However, he knew it was family land, and that is why he allowed the others to move in and settle on the land. 28.There is the contention by the appellant that the respondents’ evidence was hearsay and contradictory. While there were minor inconsistencies, they were not material. In Gachuma Gacheru vs. Maina Kabuchwa [2016] KECA 526 (KLR), the Court noted that material contradictions on a key issue, such as the purchase price, can render a witness untrustworthy. However, the contradictions here concerned peripheral matters, such as whether the money was handed over to Kemboi alone or to both Kemboi and the appellant and the precise dates. The core fact that family money was used to acquire the land, however, was consistently testified to by multiple witnesses. The trial court was entitled to accept that evidence. 29.On the contention that the trial court relied on hearsay evidence, the appellant referenced the evidence of PW7 David Kimtai Mwei, who testified that his mother told him that the father had given money to the appellant. We agree that this was indeed hearsay testimony. However, there was direct evidence from PW4, who testified to have witnessed the handing over of the money. The trial court did not rely on hearsay evidence but rather on a combination of direct and circumstantial evidence. 30.There is the argument by the appellant that the trial court erred by ordering the land to be registered in the name of the deceased Chepkulei Arap Korir. This argument is not traceable to any of the grounds of appeal. That notwithstanding we observe that in Dominic Musei Ikombo vs. Kyule Makau [2019] KECA 482 (KLR), the Court held that a deceased person cannot have any proprietary rights or any other interest in land. In that regard, the Court stated:“It is trite that a deceased person cannot have any proprietary rights or any other interest in land. The land subject of this matter could only be transferred to the legal representatives of the deceased persons or specifically to their families. To that extent, we agree with the learned Judge that the minister made an order that amounted to a nullity in law, and the award is not capable of being executed. Where the decision is a nullity in law, then the same is amenable to judicial review.” 31.Consequently, the order directing registration in the name of the “Estate of the late Kipsongok Arap Chepkulei” is, in our view, problematic. The parcel of land was never registered in the name of the deceased Kipsongok Arap Chepkulei at any given time so that it can be said that the suit property was returned to the status quo ante. Having found that the appellant was holding the suit property in trust for his siblings, the appropriate order would have been to cancel the title and share the land among the children of the deceased Kipsongok Arap Chepkulei. However, this error does not vitiate the judgment. The core finding, that the appellant held the land in trust, is sound and is hereby affirmed. 32.We note from the submissions of counsel for the respondents that after the judgment was delivered, the body of Joseph Kisorio Samoei was laid to rest in the suit property. The suit land is now said to be registered in the name of the late Chepkulei Kipsongok Arap Korir and the estate of the deceased Chepkulei Kipsongok Arap Korir is the subject of succession proceedings in Kitale Chief Magistrate Succession No. 51 of 2023. In the circumstances, whereas the order was technically irregular, it has been overtaken by events, and in any event, no substantial injustice or prejudice has been caused to any of the parties. For avoidance of doubt, the estate of the deceased shall be distributed in accordance with our finding in this judgment that the appellant held the title in trust for the respondents. 33.After a careful re-evaluation of the evidence on record, the submissions of counsel, and the applicable law, we find that the trial court correctly concluded that the appellant holds the suit property in trust for the family of the late Kipsongok Arap Chepkulei. Therefore, the appellant’s grounds of appeal lack merit, and the appeal is dismissed. 34.Given that the parties are close relatives, and in the interest of family harmony, we direct the parties to bear their own costs of this appeal. However, we find no reason for interfering with the order on costs issued by the trial court. As such, the order on costs issued by the trial Judge shall remain undisturbed. 35.Orders accordingly. DATED AND DELIVERED AT ELDORET THIS 26TH DAY OF JUNE 2026.M. GACHOKA C.Arb, FCIArb..................................JUDGE OF APPEALW. KORIR..................................JUDGE OF APPEALL. M. NDOLO..................................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDeputy Registrar