https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4144

Korir v Kangogo & another (Environment and Land Appeal E009 of 2025) [2026] KEELC 4144 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEELC 4144 (KLR) Republic of Kenya In the Environment and Land Court at Nakuru Environment and Land Appeal E009 of 2025 LC Komingoi, J July 2, 2026 Between Robert Kipkoech Korir Appellant and Daniel Kangogo 1st Respondent Gladys Chebet 2nd Respondent (Being an appeal from the Judgement of Hon. Daisy Mosse Principal Magistrate delivered on 14th November, 2025 in Molo ELC Case No. E009 of 2023) Judgment 1.This is an appeal arising from the judgement of Honourable Daisy Mosse Principal Magistrate, Molo delivered on 14th November, 2025 in Molo ELC Case No. E009 of 2023. 2.Aggrieved by the said decision, the Appellant filed a Memorandum of Appeal dated 28th February, 2025 appealing against the said judgement on the following grounds:1.That the learned trial Magistrate erred in Law and facts by inferring trust when the same was no pleaded and or proved.2.That Learned trial Magistrate erred in law and fact in holding the registration of the appellant, was to hold the suit property in trust for the 2nd respondent and her daughter when the said child had not been born.3.That learned trial Magistrate erred in law and facts that this being a first registration, the same could only be cancelled upon proof of fraud, which must be pleaded, particularized and proved.4.That trial Magistrate erred in law and facts in reaching a wrong decision on basis of mere allegation of holding the original documents by the 2nd respondent which documents were in the appellant’s name.5.That learned trial Magistrate erred in law and facts by holding that both the 2 respondent and the appellant have rights over parcel number Nakuru / Siruikwa / 521 registered in the appellants name with the 2nd respondents overriding that of the appellant.6.That learned trial Magistrate erred in law and facts by reaching a wrong conclusion of sharing / dividing the appellants parcel of land and allocating him a smaller portion.7.That Learned trial Magistrate erred in law and facts by not considering the evidence and records presented before her and dwelling on alleged trust, while ignoring that this was a first registration.8.That Learned trial Magistrate erred in law and facts by granting reliefs of cancellation of title deed and ordering issuance of fresh title deed in the name of the appellant with 2 acres and 2nd respondent 3 acres, reliefs not sought by the 2nd respondent in her counter claim. 3.The Appellant therefore seeks orders setting aside the judgment and that judgment be entered in his favour as prayed in the plaint dated 2nd February 2023. Brief Facts 4.The Appellant filed a Plaint dated 2nd February, 2023 where he sought for an order declaring that he was the sole lawful owner of Land parcel known as Nakuru/Sirikwa/521(hereinafter referred to as “the suit property”). He also sought for an order of permanent injunction restraining the Respondents or their agents from trespassing onto the suit property. 5.It was the Appellant’s case that the Respondents violated his proprietary rights when they trespassed onto the suit land. 6.The 2nd Respondent on the other hand filed her Statement of Defence and Counterclaim dated 19th October, 2023 where she denied the allegations in the Plaint. 7.She sought for a number of prayers including a declaration that there existed a trust relationship between the Appellant and 2nd Respondent and an order of permanent injunction restraining the Appellant from interfering with the suit land. 8.The matter proceeded for hearing and subsequently the trial court delivered its judgment on 14th February, 2025. The learned trial magistrate found that the Appellant held the suit property in trust for the 2nd Respondent. 9.The Appellant being dissatisfied with the judgment lodged the instant appeal before this court. 10.The court admitted the appeal for hearing and the same was canvassed by way of written submissions. The Appellant’s Submissions 11.Counsel for the Appellant filed his submissions dated 2nd April, 2026 based on the grounds in the memorandum of appeal. On grounds 1, 2 and 7, he submitted that the trial court erred by inferring that the Appellant held the suit property Nakuru/Sirikwa/521 in trust for the 2nd Respondent. 12.He submitted that there was no evidence of financial contribution or common intention by the 2nd Respondent to warrant a trust and that her claim merely stems from being a jilted lover who cohabited with him between 2001 and 2013. 13.He further submitted that the Appellant solely applied for the allotment, paid the requisite fees and was issued a title deed in his name. He relied on the case of Kiebia V M’lintari & Another (Civil case No. 10 of 2015 [2018] KESL 22 (KLR). 14.On ground 3, he submitted that the trial court made a wrong decision by ordering the cancellation of his title deed. He submitted that since this was a first registration, the title could only be cancelled upon strict proof of fraud. He added that the 2nd Respondent never specifically pleaded or proved fraud in her case. He relied on the case of Vijay Morjaria V Nansingh Madhusingh Darbar & Another (2000) eKLR. 15.On ground 4 it was his submission that the trial court erred by holding that the 2nd Respondent was the rightful owner of the suit parcel merely because she held the original documents. He submitted that it was not in dispute that both the Appellant and 2nd Respondent lived together a while back and this explained the reason she had the documents. He added that the documents were however not in her name. 16.Going to grounds 5 and 6, he submitted that holding original documents does not override the legal rights of a registered proprietor and that his title should be protected as prima facie evidence of absolute ownership. 17.On ground 8, he submitted that the documents showed that the Appellant was the sole registered owner of the suit parcel and he never held in trust for the 2nd Respondent. He cited the case of Munyu Maina V Hiram Gathitha Maina (Civil Appeal No. 239 of 2009). 18.He further submitted that the Appellant gave a chronology of how he applied and was allocated and paid the requisite fees and ultimately issued with the title to the suit property. 19.He added that the 2nd Defendant failed to prove that she was the lawful owner of the suit property or that she had financially contributed towards acquisition of the suit land. Counsel cited Section 26 (1) of the Land Registration Act. 20.In conclusion, he submitted that the trial court ignored his evidence and reached a wrong decision by sharing the suit property. He urged the court to allow the appeal and set aside the trial court's judgment. The 1St Respondent’s Submissions. 21.Counsel for the 1st Respondent filed her submissions dated 18th May, 2026 where she submitted that throughout the case, no evidence had been led against the 1st Respondent. 22.It was her submission that the Aappellant forced the 1st Respondent to participate in the appeal without making any claim against him. She urged the court to dismiss the appeal with costs. The 2Nd Respondent’s Submissions 23.Counsel for the 2nd Respondent filed his submissions dated 19th May, 2026 where he identified three issues for determination, consequences of failing to produce documents as exhibits, whether there exists a trust relationship between the Appellant and the 2nd Respondent, in respect to land parcel NAKURU/SIRIKWA/521 and who bears the costs of the Appeal. 24.On the first issue, he submitted that the Appellant did not produce a copy of the judgment in Nakuru ELC No. 334 of 2012 which mentioned the suit property and that the 2nd Respondent was not a party to the suit. 25.He relied on the case of CMC Aviation Ltd V Crusair Ltd (No1) [1987] KLR 103 and Robert Ngande Kathathi V Francis Kivuva Kitonde [2020] eKLR and submitted that the failure to produce the documents filed by the Appellant was fatal to his case. 26.On the second issue, he gave a summary of the evidence and submitted that the 2nd Respondent’s source of fund in acquisition of the suit property was her sister. 27.He submitted that the 2nd Respondent registered the suit parcel in the Appellant’s name and the same led to a resulting trust being formed. He cited the case of Selly Jepchumba Samoei & 3 others V Kimwei Arap Samoei [2020] eKLR and Yogendra Purshottam Patel -vs- Pascalle Mireille Bash (Nee Patel) and 2 Others 2006 eKLR. 28.He further submitted that the 1st Respondent was in occupation of the suit parcel as evidenced from the photographs produced. He also submitted that the 2nd Respondent had every intention of creating a trust in acquisition of the property. He cited the case of Stephen Mararo Karoki V James Ngonga Njoroge & Priscilla Njoki Njoroge (Environment & Land Case 204 of 2010) [2017] KEELC 1638 (KLR) 29.Counsel submitted that from the Respondents’ evidence, there was no doubt that the Appellant first set foot on the suit property in 2023, while the 2nd Respondent has been in the land since 2006. 30.He added that the Appellant had no single original payment receipts while the 2nd Respondent produced as exhibits original documents of purchase. It was his submission that there existed a trust relationship between the Appellant and the 2nd Respondent. 31.On the final issue of costs, counsel relied on Section 27 (1) of the Civil Procedure Act and the case of Cecilia Karuru Ngayu V Barclays Bank of Kenya & Another (2016) eKLR. He submitted that the 2nd Respondent was entitled to costs of the appeal. 32.In conclusion, he urged the court to dismiss the appeal with costs. Analysis And Determination 33.I have considered the Appeal herein including the Memorandum of Appeal and the Record of Appeal, and the written submissions. The issue for determination is whether the 2nd Respondent has established a legal or equitable interest in L.R. No. Nakuru/Sirikwa/521 by virtue of a resulting trust. 34.Being a first appeal, the court relies on a number of principles as set out in Selle and another V Associated Motor Boat Company Ltd and others [1968] 1 EA 123:“…this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence ...” 35.Further as was held in the case of Mwangi V Wambugu [1984] KLR 453 that an appellate court will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence; or where the court has clearly failed on some material point to take account of particular circumstances or probabilities material to an estimate of the evidence. 36.It was the Appellant’s case that the learned trial magistrate erred in law and fact in finding that the 2nd Respondent had an overriding interest over the suit property. He added that the trial court erred when it held that the Appellant held the suit parcel in trust for the 2nd Respondent and their daughter. 37.The Appellant claims that the suit parcel being first registration could only be cancelled on allegation of fraud which was not the case in the instant suit since the 2nd Respondent never pleaded fraud. 38.He further claimed that the 2nd Respondent failed to prove that she was the lawful owner of the suit property or that she had financially contributed towards acquisition of the suit land. 39.The 2nd Respondent on the other hand contends that she purchased the suit property and since the Appellant was her husband, she had the same registered in his name. 40.She argued that the Appellant did not make any financial contribution towards acquisition of the suit land but only held it in trust for herself and their daughter. 41.In the case of Hatayan & Another V Al-Heidy & 5 Others (Civil Appeal 51 of 2014) [2015] KECA 713 (KLR) the court held that:“The general rule 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” 42.It is trite law that where one person advances the purchase money for property which is registered in the name of another, a resulting trust ordinarily arises in favour of the person who provided the purchase money. 43.I have keenly perused the record of appeal and it is not in dispute that the Appellant admitted that he once lived with the 2nd Respondent in 2013. He also confirmed they each paid for their parcel of land being 521 and 513. 44.However, it is not in dispute that the Appellant only produced copies of the receipts of payment and claimed that he did not have the originals. He also admitted that at one point he paid for the two parcels on behalf of the 2nd Respondent who had given him money outside the bank. 45.Notably, the Appellant did not confirm the specific property to which he paid for on behalf of the 2nd Respondent neither did he confirm the date he made the payment. 46.The 2nd Respondent gave evidence that she was the one who facilitated purchase of the suit property even though the records showed that it was in the Appellant’s name. During cross-examination, she confirmed that her name appeared in the Kenya Revenue Authority stamp duty form for purchase of the two parcels. 47.Section 107 of the Evidence Act provides that:-“Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.” 48.Section 109 of the same Act provides that:-“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.” 49.It is this court’s view that the onus lay on the Appellant to prove that he indeed paid for the suit property. The 2nd Respondent also bore the burden to prove that she gave the Appellant monies for purchase of the suit property. 50.This court has perused the court record and it is a fact that from the evidence adduced, only one receipt was paid to the bank on 20th January, 2012 by the Appellant being the land rent. 51.It is my opinion that in as much as the Appellant claimed that he once paid for the two properties on behalf of the 2nd Respondent, he failed to show the other times he did pay by himself. 52.From the evidence, it is not in dispute that the two parcels were paid for at once though the allotment letter and receipts from the Land Registry had the Appellant’s name. 53.It is my opinion that the Appellant failed to convince the trial court and largely by extension this court that he in fact paid for the suit property. It was clear from the Appellant’s evidence that he received monies from the 2nd Respondent which he used to pay for parcels 521 and 513 respectively. 54.In the circumstance, it is my view that the trial court did not err in finding the same and although the suit property wasnd Respondent having paid for the consideration for the suit land.eventually registered in the Appellant’s name, such registration could not extinguish any equitable interest that had accrued in favour of the 2 55.Consequently, this court finds that the 2nd Respondent established on a balance of probabilities that she had a beneficial interest in L.R. No. Nakuru/Sirikwa/521 and that a resulting trust arose in her favour. 56.The upshot of the foregoing is that the appeal is without merit and is hereby dismissed with cost to the Respondents. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 2ND DAY OF JULY 2026L KOMINGOIJUDGEIN PRESENCE OF:-No appearance for the AppellantMr. Kibet for the 2nd Respondent also holding brief for Koigi for the 1st Respondent.Court Assistant: Irene/Derrick