From Guarded Exception to Emerging Norm: Constructive Trust and the Gradual Erosion of Indefeasibility of title

For decades, Kenyan courts have affirmed that registration, while conferring legal ownership, does not necessarily extinguish equitable interests arising from overriding interests including trusts. However beneath this apparent doctrinal clarity lies an increasingly delicate tension between certainty of title and the demands of equity.

The Court of Appeal’s early pronouncements in Mbothu v Waitimu and Kanyi v Muthiora established trust as a narrow but potent exception to indefeasibility of title—one grounded in customary law, family arrangements, and strict proof. These decisions preserved a careful balance by simply recognising equitable interests without dismantling the reliability of the land registration system-torrent system.

However, on 27th February, 2026 in Erick Kipkurgat Kiprono v Patrick Kimutai Kiprono the Court of Appeal suggests a subtle, yet consequential, shift. In embracing a more flexible and inferential approach to trust, the Court appears to move away from doctrinal restraint toward a broader, equity-driven intervention. The Court elevated equity over title—but in doing so, it may have quietly lowered the bar for defeating registered ownership under section 24 of the Land Registration Act.

The brief background to the dispute was that the appellant and the respondent who were brothers agreed to jointly purchase a 10 acre parcel from Lonrho Agribusiness (East Africa) Limited (the Vendor) back in the year 2000. An agreement for sale was subsequently executed between the parties, with a schedule appended indicating that the land was to be registered in the names of both parties. Subsequently, the title was registered solely in the appellant’s name and the dispute arose later when the respondent sought to assert his interest and make use of the land. The matter first went to ELC.

At the ELC the Appellant argued that the suit land was ancestral and although registered in the defendant’s name, it was held in trust for the family. He argued that the registration was done for convenience, not to confer exclusive ownership. The Respondent on the other hand argued that he was the absolute registered proprietor of the land and denied existence of any trust. He further argued that there was no evidence of contribution or agreement creating a trust and that any alleged interest was unenforceable, possibly offending statutory requirements.

The ELC ruled in favor of the Appellant, holding that the agreement for sale was valid and that the defendant acted for both himself and the plaintiff, with five acres allocated to each. The court confirmed the plaintiff’s contribution and the existence of a trust and held that Land Control Board consent was unnecessary between the parties.

Aggrieved with the decision of the ELC, the defendant lodged an appeal on the basis that the judge had erred in finding that a trust existed between the two parties over the subject parcel of land.

In its analysis, the Court of Appeal established that once intention to create a trust is established, equity supplies the doctrines by which the beneficial interest is given legal effect. In the present case, the intention was not left to inference but was clearly expressed in the agreement for sale which explicitly provided that the appellant was acting as an agent and included a schedule allocating equal shares to both brothers. The Court rejected the appellant’s allegation that the agreement had been altered noting that no evidence of forgery or tampering had been presented.

On the issue of contribution, the Court held that the respondent’s failure to produce documentary proof of his monetary contribution towards the purchase price did not undermine his claim. The court further held that the Land Control Board Consent was properly obtained and hence the sale was complete as required under the law and that the caution that was lodged on the property by the respondent was valid. The Court upheld the decision of the ELC. The decision highlights the court’s duty to ensure that legal ownership is not used to perpetrate injustice in arrangements founded on trust.

The significant shift in court reasoning and jurisprudence from Mbothu v Waitimu where trusts were treated as controlled exceptions requiring evidentiary justification to Kiprono v. Kiprono where the court has embraced a more flexible and inferential approach to trust has its own fair share of consequences.

While equity serves as an essential corrective against injustice, its unrestrained application risks blurring the line between legal ownership and moral entitlement. If the threshold for proving trust becomes too accommodating, the doctrine of indefeasibility may be reduced from a cornerstone of land law to a qualified presumption, easily displaced by contested narratives of fairness. This may thus be seen as weakening section 24 of the Land Registration Act further. The question to grapple with going forward is how should courts insist on proof of trust so as to balance equity and indefeasibility of title.