https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10371

Kibiwot v Bartocho & another (Succession Cause 133 of 2012) [2026] KEHC 10371 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KEHC 10371 (KLR) Republic of Kenya In the High Court at Eldoret Succession Cause 133 of 2012 RN Nyakundi, J July 10, 2026 Between Loice J Kibiwot Applicant and Joshua Limo Bartocho Objector and Daniel Cheruiyot Proposed Interested Party Ruling 1.The Applicant Daniel Cheruiyot having been enjoined as an Interested Party by this Court on 11th day of April 2025 oral evidence was taken to establish his claim of having purchased a parcel of land by dint of an agreement dated 11th May 2010 from the Petitioner/Respondent comprising of 2 acres and the full purchase price was paid on 28th June 2016. It was his testimony that currently there was an appeal over the property in Iten ELC Appeal No. E002 of 2024. In addition the Interested Party/Objector annexed the sale agreement in which he had paid the Respondent Loice Jepkosgei Chebos Ksh 11,000/= as part of the purchase price in reference to Parcel No. Mosop Kapchorua/202 measuring 2 acres at a consideration of Kshs 170,000/=. That this same property happens to be the subject matter in Probate and Administration Cause No. 133 of 2012. 2.In a rejoinder, one Loice Kibiwott who is the Widow and Administrator to the Estate of the Deceased acknowledged that she had sold 2 acres to the Interested Party who paid the complete purchase price. However, she acknowledged that the purchaser is yet to secure his title deed for the 2 acres of land. Decision 3.From the evidence admitted before this Court as between the Interested Party and the Petitioner the standard and burden of proof under Section 107, 108, 109 and 112 of the Evidence Act has been discharged that there was a land purchase agreement involving Parcel No. Mosop Kapchorua/202 in which two acres of land rights had been crystalized in favour of the Interested Party/Applicant. As a consequence of which the nature of the rights are capable of falling within a constructive trust which is an equitable remedy imposed by law to prevent unjust enrichment or unconscionable conduct typically arising when someone owes legal title to property but another party has a beneficial interest based on their conduct, contributions or common intention. This doctrine has been discussed in several authorities which include the following: Kitilit v Kibet [2018] KECA 573 (KLR): The Court of Appeal ruled that the vendor, who received the full purchase price and handed over possession, became a constructive trustee. Attempting to evict the buyer after the buyer developed the land constitutes unconscionable enrichment. Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others (Supreme Court): This landmark Supreme Court of Kenya ruling clarified the framework surrounding trusts, affirming that a constructive trust can be invoked to challenge and override a strictly registered land title under equitable principles. Maina & 87 others v Kagiri (Court of Appeal): The court reinforced the principle that the payment of consideration and the establishment of a "common intention" creates a valid constructive trust, even if the underlying contract may be technically flawed or lack Land Control Board consent. 4.The definition of a constructive trust was at length demystified by this Court in Twalib Hatayan Twalib Hatayan & Anor vs. Said Saggar Ahmed Al-Heidy & Others [2015]eKLR, where it was held:“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 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 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).” 5.The Apex Court also set the threshold in law of what constitutes a constructive trust in the case of Shah & 7 others vs. Mombasa Bricks & Tiles Limited & 5 others [2023] KESC 106 (KLR). Thus:“The Trustee Act defined a “trust” and “trustee” as extending to implied and constructive trusts. A constructive trust was an equitable instrument which served the purpose of preventing unjust enrichment. Trusts were created either expressly, where the trust property, its purpose and the beneficiaries were clearly stated, or established by the operation of the law. Like in the instant case, where it was not expressly stated, the trust may be established by operation of the law… A constructive trust was a right traceable from the doctrines of equity. It arose in connection with the legal title to property when a party conducted himself in a manner to deny the other party beneficial interest in the property acquired. A constructive trust would thus automatically arise where a person who was already a trustee took advantage of his position for his own benefit.” 6.I hold the view that in order for a constructive trust to be found, in a family case as in other cases, monetary compensation must be inadequate and there must be a link between the services rendered and the property in which the trust is claimed. This is what Deane J said in Mschinski v Dodds [1985] 160 CLR 583 at 614 that:Viewed in its modern context, the constructive trust can properly be described as a remedial institution which equity imposes regardless of actual or presumed agreement or intention (and subsequently protects) to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle. 7.For those reasons most importantly, and on admission by the Petitioner the Interested Party remains a bonafide purchaser of value and what is remaining is to effectuate the transfer of title of the 2 acres of land so that broadly Article of the Constitution can be crystalized. I therefore exercise discretion with regard to this dispute given the view that the threshold question on constructive trust has arisen in the present circumstances. Orders accordingly and I make no orders as to costs. DATED, DELIVERED AND PUBLISHED VIA CTS AT ELDORET THIS 10TH DAY OF JULY 2026.………………………….……….R. NYAKUNDIJUDGE>