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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCourt of Appeal at Mombasa (appeal from ELC judgment of A. Omollo, J, delivered by S. Munyao, J)· [2023] KECA 937 (KLR)

NJA v ZJA alias ZP (Civil Appeal 55 of 2020) [2023] KECA 937 (KLR)

Court of Appeal of Kenya
28 July 2023
7,393 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that even family members holding land titles must prove they acquired them properly, and non-owners can earn a share through contributions.

What this practically means

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Executive summary

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The appellant, brother of the respondent, sued over two Mombasa properties: Plot XX (family land inherited by their late mother from her uncle) and Plot X/XX, claiming constructive trusts and alleging fraudulent transfers of both properties into the respondent's name. The Environment and Land Court (A. Omollo, J) dismissed his claim and allowed the respondent's counterclaim for eviction. On first appeal, the Court of Appeal re-evaluated the evidence. It declined to entertain the respondent's locus standi objection, raised for the first time on appeal. On fraud, the Court found that although the mental-capacity ground of fraud was not proved, the respondent's own admissions — that the PIN on the transfer forms belonged to a clerk of the advocate, and that she was out of the country when the transfers were purportedly signed — together with blank vendor PIN entries and missing advocate certifications, established that the transfers were irregular and fraudulent. On trusts, the Court held the trial judge misdirected herself on Plot XX: being family property, the appellant retained an equitable beneficial interest despite the respondent redeeming his loans, and a constructive trust existed. On Plot X/XX, although the appellant made no proven financial contribution to purchase or construction, his contribution of time and energy to development and management, and his occupation and care of their mother, gave him an equitable interest enforceable as a constructive trust. The Court set aside the ELC judgment and, under Rule 33 of the Court of Appeal Rules, remitted the proceedings to the ELC before a judge other than A. Omollo, J, to receive additional evidence and assess the value of each party's beneficial interest. As a family matter, it made no order as to costs.

Key legal issues

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01

Locus standi of the appellant to challenge the transfers

Holding

The point failed because it was raised for the first time on appeal and was neither raised at trial nor addressed in the impugned judgment.

Reasoning

The respondent's counsel argued the appellant should have sued through his late mother's estate as an heir or dependent, relying on authorities on intestate succession. The Court agreed that locus standi is a jurisdictional issue that must be raised at the trial court, which was the right forum, and since it was not raised there nor determined in the judgment, nothing turned on the point.

p. 6
02

Whether fraud was proved in the acquisition of the suit properties

Holding

The appellant proved irregularities amounting to fraud in the transfers, including use of a stranger's PIN and blank certifications, despite that ground not being specifically pleaded.

Reasoning

The respondent admitted the PIN on the transfer forms belonged to a clerk of the advocate and that she was out of the country when the transfers were purportedly signed. The transfer documents lacked the vendor's PIN and advocate certifications required under the then-applicable Registered Land Act. The Court held the transfers were a misrepresentation of facts and therefore irregular and fraudulent, and that unpleaded fraud could be considered where evidence and submissions were led.

p. 10
03

Whether a trust existed in favour of the appellant over Plot XX

Holding

A constructive trust existed because Plot XX was family property in which the appellant had an equitable beneficial interest notwithstanding the respondent's legal title.

Reasoning

The trial judge erred in holding that because the appellant used the family property as loan security and the respondent repaid Kshs 3,250,000, he lost all beneficial interest. Being family property, either sibling could use it; there was no evidence the mother objected to the use as security, indicating an acknowledged right, and no evidence that the repayment exhausted the appellant's interest. The trial court should have quantified his beneficial share.

p. 12
04

Whether a trust existed in favour of the appellant over Plot X/XX

Holding

A constructive trust also existed over Plot X/XX because the appellant contributed time and energy to its development and management, increasing its value, even though he did not pay for its purchase or construction.

Reasoning

The Court agreed with the trial judge that the respondent bought and developed Plot X/XX with her own resources, so the appellant proved no financial contribution to acquisition or construction. However, the respondent failed to explain under what circumstances the appellant entered and occupied the building; he managed the property, collected rents, and cared for their mother while the respondent lived abroad. This gave him an equitable interest enforceable as a constructive trust.

p. 13

Legal principles established

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  • On a first appeal, the Court of Appeal must reconsider and evaluate the evidence itself and draw its own conclusions, while making due allowance for having neither seen nor heard the witnesses.
  • A registered proprietor whose root of title is under challenge must go beyond the instrument of title and prove the legality of how the title was acquired.
  • Allegations of fraud must be strictly pleaded and proved to a standard higher than the ordinary balance of probabilities.
  • Even where a particular act of fraud was not pleaded, it may be considered if evidence is led on it during trial, submissions are made, and the matter is left for the court to determine.
  • A constructive trust may be implied where a party with no legal title has an enforceable equitable beneficial interest in property held by another.

Court orders

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  1. 1.The judgment of the ELC (A. Omollo, J) dated January 23, 2020 is set aside
  2. 2.Pursuant to Rule 33 of the Court of Appeal Rules, the proceedings are remitted back to the ELC before a Judge other than A. Omollo, J, with directions to receive additional evidence to assess and determine the value of the beneficial interest of the appellant and the respondent over Plot Nos 59 and X/XX, and thereupon enter Judgment based on those findings
  3. 3.The Deputy Registrar of the Court of Appeal to send a copy of the judgment to the Deputy Registrar of the ELC, Mombasa, to place the file before the Duty Judge for directions as to the fresh hearing and disposal
  4. 4.No order as to costs, as this is a family matter

Authorities

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Legislation

  • Registered Land ActSection 155(2)(a)
  • Law of Contract ActSection 3(3)
  • Evidence ActSections 107 and 108
  • Court of Appeal RulesRule 33

Cases cited (21)

  • Kenya Ports Authority v Kuston (Kenya) Limited
    [2009] 2EA 212
  • Jabane v Olenja
    [1986] KLR 661
  • Mbogo & Another v Shah
    [1968] EA
  • Alinoor Abdi Elmi Ali & 2 Others v Wilson Kipyegon Chelule & 2 Others
    [2021] eKLR
  • Ephantus Njuguna Mura v Lucy Wanjiru Njuguna & 5 Others
    [2018] eKLR
  • Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama
    [2014] eKLR
  • Patrick Tarzan Matu & another v Nassim Shariff Abdulla & 2 others
    [2009] eKLR
  • Munyu Maina v. Hiram Gathiha Maina
    Civil Appeal No 239 of 2009 [2013] eKLR
  • Arthi Highway Developers Limited v West End Butchery & 6 others
    [2015] eKLR
  • Misty Amar Singh v. Serwano Wofunira Kulubya
    UCA No 74 of 1960
  • Gichinga Kibutha v Caroline Nduku
    [2018] eKLR
  • Emfil Limited v Registrar of Titles Mombasa & 2 others
    Mombasa Civil Appeal No 312 of 2012; [2014] eKLR
  • John Kamunya & another v John Nginyi Muchiri & 3 others
    [2015] eKLR
  • Gladys Wanjiru Ngacha v Treresa Chepsaat & 4 others
    [2013] eKLR
  • Mutsonga v Nyati
    [1984] KLR 425
  • RMM v BAM
    CA No 267 of 2011
  • Hussey v Palmer
    [1972] 3 All ER 744
  • Charles K. Kandie v. Mary Kimoi Sang
    (2017) eKLR
  • James Archer vs, Inger Christine Acrcher and others
    Civil Appeal No 39 of 2020 (UR)
  • Llyods Bank Plc v Rosset
    (1991) 1 AC 107
  • Twalib Hatayan Twalib Hatayan & Anor v Said Saggar Ahmed Al-Heidy & Others
    [2015] eKLR
On appeal from
Environment and Land Court
Jurisdiction invoked
First appeal to the Court of Appeal, with power under Rule 33 of the Court of Appeal Rules to remit proceedings and make incidental or consequential orders

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "NJA v ZJA alias ZP (Civil Appeal 55 of 2020) [2023] KECA 937 (KLR)", Case Analysis (2023). Court of Appeal at Mombasa (appeal from ELC judgment of A. Omollo, J, delivered by S. Munyao, J). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/937/eng@2023-07-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.