https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4917

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT ELDORET** **ELC CASE No. E065 OF 2024** **JOSHUA KIRWA KORIR (***Suing as the Personal Representative of the Estate of* **REVEREND ABRAHAM KIPKORIR TARUS)** **…………………PLAINTIFF** **VERSUS** **RASALEEN CHELANGAT KOGO (***Sued as the Personal Representative of the* *Estate of* **NATHAN KIMAIYO TARUS)** …………………………**DEFENDANT** **JUDGMENT:** 1. The Plaintiff commenced this suit against the Defendant vide Plaint dated 12th November, 2024 and Amended on 22nd October, 2025 where he seeks the following reliefs:- 2. A declaration that the late Nathan Kimaiyo Tarus held a section of that parcel of land referred to as TURBO WEST/OSONGORAI BLOCK 3(TAPSAGOI)/36 measuring 200 Acres formerly known a section of land parcel No. 4794/4 in trust for Abraham Kipkorir Tarus (Deceased). 3. An order do issue directing the Land Registrar, Uasin Gishu County to register 200 acres being part of land referenced as TURBO WEST/OSORONGAI Block 3 (Tapsagoi)/36 formerly a section of land parcel No. 4794/4 in the name of Abraham Kipkorir Tarus (Deceased). 4. A permanent injunction restraining the defendant, her agent and/or servants from trespassing, selling or otherwise interfering with the beneficiaries of Abraham Tarus possession of a section of TURBO WEST/OSONGORAI BLOCK 3 (TAPSAGOI)/36 measuring 200 Acres formerly a section of land parcel referenced as LR No. 4794/4. 5. Any other order that the court may deem fit to grant. 6. Costs of the suit. 7. The Plaintiff’s case is that in 1962, the late Nathan Kimaiyo Tarus purchased L.R. No. 4794/4 measuring 600 Acres from a white settler through the Settlement Fund Trustee for KShs. 45,000/-, out of which he paid a deposit of KShs. 10,000/-. That being unable to settle the balance, he sought help from his son, the late Abraham Kipkorir Tarus, who paid KShs. 35,767/-, being the balance and accrued penalties. That this was on the understanding that the late Abraham Kipkorir Tarus would own half share of the land measuring 300 Acres. The Plaintiff avers that as a result, a trust was established between them, where the late Nathan Kimaiyo Tarus held a section of LR No. 4794/4 measuring 300 Acres in trust for the late Abraham Kipkorir Tarus. 8. The Plaintiff states that LR No. 4794/4 was thereafter subdivided into 37 portions numbered Plot 1-37, and plot nos. 1-35 were sold to third parties by the late Nathan Kimaiyo Tarus. The Plaintiff avers that the late Nathan Kimaiyo Tarus gave the late Abraham Kipkorir Tarus 100 Acres being plot no. 37, while plot no. 36 measuring 247 Acres (the suit property), remained. That he was later given 100 Acres out of plot no. 36, which is currently occupied by Abraham Kipkorir Tarus’s sons, but the same is still registered in the name of Nathan Kimaiyo Tarus. That the remaining 100 Acres was to be given to Abraham Kipkorir Tarus upon the demise of Nathan Kimaiyo Tarus who was using the land during his lifetime. 9. The Plaintiff avers that despite being aware that the late Abraham Kipkorir Tarus owned part of the land, the Defendant went ahead and registered the whole of it as part of the estate of the late Nathan Kimaiyo Tarus. The Plaintiff claims that the Defendant has threatened to takeover possession thereof, including the 100 Acres given to Abraham Kipkorir Tarus and not transferred to him, and the 100 Acres he was to be given later, thereby disinheriting his widow and children. The Plaintiff alleges that the Defendant has refused and/or neglected to comply with demand issued to her, thus necessitating this present suit. 10. The Plaint was duly served on the Defendant, who filed a Notice of Appointment of Advocates dated 20th January, 2025 appointing the firm of Nyabocho Lagat & Co. Advocates. The Defendant however did not file a Defence or any response to the Amended Plaint. **Hearing and Evidence:** ***The Plaintiff’s Case;*** 1. The Plaintiff’s case was heard on 28.04.2026. The Plaintiff testified under oath as PW1 and adopted his witness statement dated 16.05.2026 as his evidence-in-chief. PW1 produced the documents in his List of Documents dated 12.11.1024 as PEXb1-7 respectively and the documents in his Supplementary List of Documents dated 24.04.2026 as PEXb8. PW1 introduced himself as a farmer residing in Turbo and the son of Abraham Kipkorir Tarus. PW1 informed the court that he had taken out a Grant of Letters of Administration which was in his List of Documents. PW1 claimed that his father owned 117 Acres of land being LR No. Moi’s Bridge Block 3 Masoon/1. 2. PW1 testified that his late grandfather, Nathan Kimaiyo Tarus, approached his son to salvage land that was to be auctioned in Tapsagoi, being LR No. 4794/4. He testified that his father with his grandfather cleared the outstanding loan of KShs. 45,000/- with the SFT. That thereafter, his father moved from Masoon to Tapsagoi where he lived and farmed on the land with his grandfather. PW1 testified that the white settler gave the title to the land to his grandfather in 1980, and his grandfather started selling the land in 1988. PW1 said that the two discussed and his grandfather agreed to give his father 100 Acres which was registered in the name of his father, Abraham Kipkorir Tarus. 3. PW1 testified that his grandparents invited members of the Land Tribunal since his father had stopped the sale of the land, and it was further agreed that his father would be given the remaining 200 Acres of the agreed 300 Acres. PW1 states that the Tribunal, however, requested his father to take possession of 100 Acres, and take the remaining 100 Acres upon his grandfather’s demise as per Kalenjin Traditions. That his father was shown the boundaries of the 100 Acres he was to occupy immediately, and he subdivided it amongst his sons who are using it to date. PW1 testified that his grandparents are both deceased, and the administration of his late grandfather’s estate is still pending in court. He asked the court to give them the balance of 200 Acres to complete the total of 300 Acres. 4. Evalyne Abraham testified on oath as PW2 and told the Court that she is the widow of the late Abraham Kipkorir Tarus. She testified that her late husband and his father purchased the suit land jointly. She explained that when the late Nathan Tarus was overwhelmed with a loan, they sold their land measuring 120 Acres in Masoon to repay the loan for the suit land. PW2 testified that the late Nathan Tarus did not give them the 300 Acres as agreed, but only gave them 100 Acres. She explained that when her husband complained about this, Nathan Tarus called the Tribunal, who ruled that they wait to be given the 200 Acres later. She states that although her husband was concerned that the land was being sold, they were told to be patient. She further states that they have never been given the remaining Acres, and she thus asked the court to order that they be given their remaining acreage since they paid for it. In addition to her oral testimony, PW2 adopted her Witness Statement dated 16.05.2025 as her evidence-in-chief. 5. The Plaintiff then called Charles Madekwa who testified as PW3, and on being sworn told the court that he currently lives in Mwamba, Turbo, but he previously used to live in Tapsagoi. PW3 testified that he used to work at the home of Nathan Tarus, who wanted to sell his land in Tapsagoi, and he approached his son Abraham to come and buy it. PW3 testified that Abraham sold his land measuring 117 Acres and he was to be given 300 Acres at Tapsagoi, but he was only given 100 Acres. That to date, he is yet to be given the remaining 200 Acres. PW3 equally adopted his Witness Statement dated 16.05.2025 as his evidence-in-chief. 6. Thereafter, Kipkemboi Kerich testified in support of the Plaintiff’s case as PW4, and adopted his Witness Statement dated 03.10.2025 as his evidence-in-chief. He informed the court that he lives in Tapsagoi and knew the late Abraham Kipkorir Tarus. He testified that his father is the elder brother of Abraham’s father, Nathan Tarus, thus Abraham is his cousin. He testified that he knew Rasaleen Chelagat Kogo, who is Abraham’s sister and also his cousin. PW4 testified that Nathan went to his father for assistance, but his father was not in a position to help. That Nathan then approached Abraham Tarus and agreed that Abraham sells his land in Kapkures and come to Tapsagoi. That Abraham indeed sold his land measuring 117 Acres and he was given 117 Acres and an additional 100 Acres. He could not tell however, if Abraham was given any more land. 7. There being no cross-examination, this marked the end of PW4’s testimony, at which point, the Plaintiff closed his case. ***The Defendant’s Case;*** 1. On the date of the hearing on 28.04.2026, neither the Defendant nor her Advocate on record was present in court. The Court confirmed that the Defendant had been served. There is on record an Affidavit of Service sworn on 27.04.2026 by Rhitter Luseria, who deponed that she served a hearing notice on the Defendant’s Advocate on 17.04.2026 for hearing of the case on 28.04.2026. The matter thus proceeded in the absence of the Defendant and her Advocate on record. **Submissions:** 1. At the close of the hearing, the court directed that parties do file their written submissions. The Plaintiff filed his submissions dated 20.05.2026 through the firm of Kiprop Luseria & Co. Advocates. When the matter was mentioned on 21.05.2026 to confirm the filing of submissions, Ms. Nyabochoa for the Defendant confirmed that the Defendant had never participated in the hearing and had not filed submissions. Nevertheless, Ms. Nyabochoa asked the court to fix a date for judgment. ***The Plaintiff’s Submissions;*** 1. In the Plaintiff’s Submissions, Counsel outlined the factual background of the case, adding that the Nathan Kimaiyo Tarus died in 1994 and left his wife on the land, but she also died in 2003. Counsel explained that Succession Cause No. 68 of 2006 was filed in Eldoret High Court for the estate of the late Nathan Tarus, but Abraham Tarus died in 2018 before the land could be transferred to him. Counsel submitted that the parties have agreed on and are in the process of distribution of all other properties of Nathan Tarus, except Plot No. 39 & Uasin Gishu/Tapsagoi/ Scheme/13 & 14, thus the issue of ownership of the suit property is still in dispute. 2. Counsel then submitted that under Section 13 of the Environment and Land Court Act, this court is empowered to hear disputes relating to the environment and land. Counsel submitted that since the suit involves the ownership of the suit property, it falls within the jurisdiction of this Court. Counsel cited ***Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 Others (2012) eKLR***, ***Re Estate of Mbai Wainaina (Deceased) (2015) eKLR*** and ***Waita & Another vs Njiraini & Another (Land Case E007 of 2023) (2024) KEELC 5777 (KLR)***. Counsel contended that since the probate court has no jurisdiction, the Plaintiff was entitled to file a substantive suit in this court as regards ownership of the land. 3. On the alleged trust, Counsel submitted that the late Abraham Tarus and his wife had sold the 117 Acres of land they called home, their businesses and cattle to settle the balance of KShs. 35,767/- and accrued penalties on the suit land. Counsel submitted that the said amount was paid through Abraham Tarus’s Advocate and referred the Court to PEXb3, a receipt issued by the SFT on 10.04.1978. Counsel thus contends that as a result, a trust was created, on the basis of which Abraham Tarus moved to LR No. 4794/4. Counsel reiterated that 100 Acres were transferred to Abraham Tarus, but on the intervention of elders and the Land Tribunal the remaining 200 Acres were to be transferred upon Nathan Tarus’s death, which is yet to be done despite his death. 4. Counsel maintained that a trust was automatically created upon payment of the KShs. 35,767/- by Abraham Tarus and he ought to be registered as the owner of the land. Counsel faults the Defendant for listing the entire suit property as an asset of the deceased, instead of a liability, despite being aware of the existing trust. Counsel contends that under Section 28 of the Land Registration Act, a trust is an overriding objective, which need not be noted in the register. Counsel argued that having proved the existence of the trust, the same overrides the title held in the name of the late Nathan Tarus. 5. Counsel asked that the land be transferred to the Estate of the late Abraham Tarus. Counsel cited ***Peter Ndungu Njenga vs Sophia Watiti Ndungu (2000) eKLR***, ***Steadman vs Steadman (1976) AC 536, 540*** and ***Hatayan Twalib Hatayan & Another vs Said Saggar Ahmed Al-Heidy & Others (2015) eKLR***. Regarding costs, Counsel cited Order 1 Rule 23 of the Civil Procedure Rules and ***Supermarine Handling Services Ltd vs Kenya Revenue Authority (2010) eKLR***, and asked that the costs of the suit be awarded to the Plaintiff. **Analysis and Determination:** 1. Having considered the pleadings, the witness testimonies and the evidence produced in court, as well as the submissions filed herein, I am convinced that the only issues that arise for determination are as follows:- 2. *Whether the Plaintiff has established a trust was created over the suit property in favour of the late Abraham K. Tarus;* 3. *Who shall bear the costs of this suit?* 4. **Whether the Plaintiff has established a trust was created over the suit property in favour of the late Abraham K. Tarus;** 5. Before proceeding to determine the suit on its merits, I must point out that while the Defendant in this case entered appearance, she did not file any Defence to the suit. As a result of this, she failed to testify or call any witness to testify on her behalf and no evidence was produced to support her case. Her Advocates on record also were absent and thus they lost the opportunity to cross-examine the witnesses who testified. 6. However, the fact that the Defendant did not testify or produce evidence does not relieve the Plaintiff of his burden of proof. The Plaintiff still has a duty to formally prove his case on a balance of probabilities as is required by law, because failure to testify and produce evidence does not mean that the Plaintiff’s case will automatically succeed. 7. The Evidence Act is clear enough as regards the burden of proof in civil cases. The applicable law as to the burden of proof is found in Section 107, 108 and 109 of the Evidence Act, which collectively require that a party must prove their allegations. Thus, the duty of proving the averments contained in the plaint lay squarely on the Plaintiff herein. Hancox JA, while sitting at the Court of Appeal in Nairobi, stated as follows in ***Karugi & Another vs Kabiya & 3 Others (1987) KLR 347***:- ***“Mr. Waweru, on behalf of the appellants, sought to persuade us that as there was no valid memorandum of appearance, and consequently no valid defence to the plaint, the learned judge should have acted on the sworn testimony of the first plaintiff that he had made enquiries and had discovered that the letters in question had been written at the request of the respondents: in other words that it was sufficient for the mere assertion to be made in the plaint, followed by uncontradicted evidence to be given in support thereof, for the burden on the plaintiff to be discharged in a case going by way of formal proof… I agree with the trial judge that, on the available material, it was they who should have been sued. Neither can I agree with Mr Waweru that the burden of proof is in any way lessened because the case is heard by way of formal proof. The burden on the plaintiff to prove his case remains the same, though it is true that, where the matter is not defended, or, as here, validly defended that burden may become easier to discharge. For these reasons I would dismiss the appeal, but, in the circumstances, I would make no order as to costs. As Platt Ag JA also agrees there will be an order in the terms proposed by Chesoni Ag JA.”*** 1. Therefore, failure to file a defence does not relieve a plaintiff of the burden of proving their case. The plaintiff must still satisfy the court by presenting sufficient evidence to establish liability and quantum on a balance of probabilities, even though the absence of a defence makes it easier to win. The burden of proof to be discharged by the plaintiff is not met by the sheer absence of a defence from the defendant and neither does it change even in the absence of rebuttal by the other side. Therefore, it is not in every case where the defendant had not called evidence that the plaintiff’s case must invariably be deemed to be proved on a balance of probabilities. 2. On the failure of a defendant to call evidence, the Court of Appeal in ***Charterhouse Bank Limited (Under Statutory Management) vs Frank N. Kamau (2016) eKLR***, held that:- ***“We would therefore venture to suggest that before the trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities by reason of the defendant’s failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant. Where the defendant has subjected the plaintiff or his witnesses to cross-examination and the evidence adduced by the plaintiff is thereby thoroughly discredited, judgment cannot be entered for the plaintiff merely because the defendant has not testified. The plaintiff must adduce evidence, which in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities, it proves the claim. Without such evidence, the plaintiff is not entitled to judgement merely because the defendant has not testified. The proposition that failure by the defendant to call evidence lessens the burden on the plaintiff to make out his case on a balance of probabilities as propounded in Karugi & Another v. Kabiya & 3 Others (supra) is totally different from the proposition advanced by the appellant in this appeal, namely that the failure by the defendant to call evidence invariably entitles the plaintiff to judgement, irrespective of the quality and credibility of the evidence that the plaintiff has presented. In our view the latter proposition has no sound legal basis.”*** 1. In this case, the burden of proving on the balance of probabilities that the he paid part of the purchase price for the suit property and is thus entitled to 200 acres from an initial agreement of 300 Acres, lay on the Plaintiff. In the suit before me, the Plaintiff alleges that the late Nathan Kimaiyo purchased the suit property, but was unable to pay the full purchase price. That as a result, the late Nathan Kimaiyo approached his son, the late Abraham Tarus, to help settle the balance. It is the Plaintiff’s case that the two reached an agreement that the late Abraham Tarus would be given 300 Acres, being half of the land. Relying on these allegations, the Plaintiff maintains that a trust was created in favour of Abraham Tarus. 2. The main issue for determination, therefore, is whether there was an implied or constructive trust between the parties in this case. In the case of **Twalib Halayan Twalib Hayatan & Another vs Said Saggas Ahmed Al-Hady & Others (2015) eKLR**, the Court of Appeal stated the law of trust as follows:- ***“Dealing with the first issue, according to the Black’s Law Dictionary, 9th Edition; a trust is defined as:-*** ***‘1. The right, enforceable solely in equity, to the beneficial enjoyment of property to which another holds legal title; a property interest held by one person (trustee) at the request of another (settlor) for the benefit of a third party (beneficiary).’*** ***Under the Trustee Act, “…the expressions “trust” and “trustee” extend to implied and constructive trust, and cases where the trustee has a beneficial interest in the trust property…”*** ***… 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 para 1453). 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).*** 1. An implied trust therefore can either be a resulting or presumed trust or a constructive trust. Notably, the lines between a resulting trust and constructive trust can be blurred and on occasion overlap. A common thread between a resulting trust or constructive trust is that they both serve the same objective; to defeat unjust enrichment and to return property to true owner. Existence of a trust is a factual question that calls for proof through evidence justifying the inference of an implied or constructive trust. 2. In this case, the Plaintiff has produced the Grant Ad Litem issued to him in respect of the estate of the late Abraham Kipkorir Tarus, as well as the death certificate issued on account of the deceased. The Plaintiff has also produced a receipt issued by the Settlement Fund Trustee on 10.04.1978 for KShs. 35,767.75 paid by the firm of B.K. Arap Tanui Advocates. Although this court was told that the money by the late Abraham Kiprorir Tarus was paid by his Advocates, nothing has been placed before this court to prove that the firm of B.K Tanui Advocates was acting for the late Abraham Kipkorir Tarus. The said receipt does not prove that the money was paid by or under instructions from Abraham Kipkorir Tarus. 3. The Plaintiff has also produced a letter dated 06.04.1978 from the firm of Shaw & Carruthers to the Settlement Fund Trustee, indicating that the late Abraham K. Tarus was acting on behalf of his father Mr. Kimaiyo Kiptarus. This letter appears to have been making follow up on certain documents relating to L.R. No. 4794/4 (the suit property) and 4794/5. Aside from stating the fact that the late Abraham Tarus was acting on behalf of his father, once more, the letter does not prove that he paid any part of the purchase price, or that there was an understanding that he would be given a portion of the suit land. 4. In addition, the Plaintiff produced a copy of summons issued by the Chief of Turbo Location who informed him that his father had gone to the said office with a land complaint. According to the Plaintiff, there was a meeting with the elders and the Land Tribunal, at which it was decided that the late Abraham Tarus would be given 100 Acres which he would occupy immediately, and the balance of 100 Acres would be given to him upon his father’s death. 5. It would have been helpful if the Plaintiff had produced a record of the minutes or proceedings of the said meeting. However, none was produced, and therefore, there is not only no evidence of payment of the part of the purchase price, but also of any agreement/understanding to allocate the late Abraham Tarus the extra 200 Acres in addition to the 100 Acre portion already given. 6. As for the letter from Abraham Tarus to the Uasin Gishu Land Board, the only thing it does is reiterate the Plaintiff’s assertions herein, that Abraham Tarus paid a substantial part of the purchase price. As already stated, no evidence of such payment has been placed before this court. 7. Quite clearly, the circumstances required for a constructive/implied trust to be inferred do not exist in the present suit. Had the Plaintiff demonstrated that the late Abraham Kipkorir Tarus paid the sum of KShs. 35,767.75 as alleged, there would have been a proper basis for finding that upon payment thereof, the late Nathan Tarus constructively or impliedly, became a trustee in relation to the suit property. 8. **Who shall bear the costs of this suit?** 9. On costs of the suit, Section 27(1) of the Civil Procedure Act vests the court with discretion to decide whether or not to award costs. Under the said provision, costs are awarded to the successful party unless there is sufficient cause for not doing so. In the present case, the Plaintiff has not succeeded in the suit. Ideally, the Defendant would have been awarded costs. 10. However, the Defendant did not participate in the suit beside filing a memorandum of appearance. Moreover, I also note that the parties are members of the same family and the dispute arises from property held in the name of the patriarch of the said family. Thus, awarding costs is likely to exacerbate tensions and animosity between the parties. For this reason, the court is satisfied that there is sufficient cause to deviate from the general rule that costs follow the event. **Orders:-** 1. Consequently, I hereby find that the Plaintiff has not proved his case to the required standard. As such, the Plaintiff’s suit is dismissed with no orders as to costs. 2. Orders accordingly. **DATED**, **SIGNED** and **DELIVERED** virtually at **ELDORET** on this **30TH** day of **JULY**, **2026** vide Microsoft Teams. **HON. C. K. YANO** **ELC, JUDGE** In the virtual presence of:- Ms. Mureithi for Plaintiff. No appearance for Defendant. Court Assistant - Laban.