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ELCDismissedNot stated in the judgment· [2015] KEELC 223 (KLR)

Fredrick Arap Maritim (suing on behalf of Maritim Arap Boretor) v Elizabeth Chepchirchir & 2 others [2015] KEELC 223 (KLR)

Environment & Land Court
24 September 2015
MSMUNYAO SILA
1,892 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment & Land Court in Nakuru dismissed a landowner's injunction bid because he could not show real evidence that land was held in trust for a minor.

What this practically means

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Executive summary

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The plaintiff, Maritim arap Boretor, sued through Fredrick arap Maritim under a power of attorney, claiming that in 2004 he subdivided land parcel Njoro/Ngata Block 2/107 and transferred the suit property, Njoro/Ngata Block 2/1589, to the 1st defendant to hold in trust for an adopted minor, AK. He sought a declaration that he is the bona fide owner, a permanent injunction against the 1st defendant, and rectification of the register. Together with the plaint he filed an application for an interlocutory injunction. The 1st defendant denied the agency, denied any trust, and asserted the land was an outright gift to her; she also raised a preliminary objection attacking the donor's capacity to grant the power of attorney on grounds of senility. The 2nd and 3rd defendants, represented by the State, did not oppose the application. Applying the Giella v Cassman Brown principles, the court found no material doubting the donor's mental capacity and rejected the preliminary objection on the power of attorney. However, it held that the 1st defendant was registered as proprietor on 6 June 2006, before the minor was handed over in January 2008, and that apart from a bare assertion there was no evidence of any trust. The plaintiff's prayers, which sought personal ownership rather than registration as trustee, further undermined his case. The application was dismissed with costs and interim orders vacated.

Key legal issues

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01

Validity of the power of attorney

Holding

The suit was properly instituted through the attorney; no material was tabled to cast doubt on the donor's mental capacity

Reasoning

The 1st respondent alleged the donor was senile and incapable of donating a power of attorney, but produced no material to support that allegation. The court noted the power of attorney was registered on 22 December 2014 and held that Fredrick Maritim was merely an agent, the real plaintiff being Maritim Boretor.

p. 3
02

Whether a prima facie case of trust was established

Holding

No prima facie case of a trust was established

Reasoning

The 1st defendant was registered as proprietor on 6 June 2006, whereas the minor AK was only handed over to the plaintiff and 1st defendant on 17 January 2008, so the minor was not in the picture at registration. Apart from the bare assertion in the affidavit, there was no evidence supporting the alleged trust.

p. 3
03

Inconsistency in the plaintiff's pleadings and prayers

Holding

The inconsistency between pleading a trust for AK and seeking personal ownership lent credence to the 1st defendant's allegation of a different agenda

Reasoning

The plaintiff pleaded the property was to be held in trust for AK, yet sought a declaration that he himself is the bona fide owner and registration as proprietor, without asking to be registered as trustee for the minor. The court found this inconsistency undermined the plaintiff's case.

p. 3

Legal principles established

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  • The burden lies on the plaintiff/applicant to demonstrate prima facie evidence of a trust before an injunction can issue
  • Where no prima facie case is established, the balance of convenience need not be considered

Court orders

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  1. 1.The application for injunction is dismissed with costs
  2. 2.Any interim orders are vacated

Authorities

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Cases cited (1)

  • Giella v Cassman Brown
    (1973) EA 358
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (statutory, suit commenced by plaint); no specific constitutional provision invoked

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Fredrick Arap Maritim (suing on behalf of Maritim Arap Boretor) v Elizabeth Chepchirchir & 2 others [2015] KEELC 223 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/223/eng@2015-09-24

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