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ELCPartially AllowedNot stated in the judgment· [2015] KEELC 282 (KLR)

International Child Care Trust(K) v David James Mbogo [2015] KEELC 282 (KLR)

Environment and Land Court (High Court), Kitale
15 July 2015
EOE. Obaga
3,118 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kitale Environment and Land Court ruled that land bought with an NGO's money but registered in an individual's name must be transferred back to the organisation.

What this practically means

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Executive summary

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The plaintiff, an NGO registered in Kenya on 15 September 1994, sued the registered owner of LR. No. Trans-Nzoia/Liyavo/212 seeking a declaration that he holds the land in trust for it. The defendant counter-claimed for the plaintiff's eviction. The plaintiff traced the land's acquisition to Misemwa Village Project, registered in February 1992 as the vehicle of International Childcare Trust (UK) during relief efforts after the 1991/1992 tribal clashes, with the defendant as chairman. Kshs.250,000 from the project's Barclays Bank account purchased the land, which the defendant registered in his own name without disclosing trusteeship. He was later convicted of stealing by servant, though the High Court on appeal quashed the conviction. In separate civil litigation he recovered the land from subsequent trustees and processed title in 2012. The court found the purchase funds came from ICCT through Misemwa Village Project, that Misemwa Village Project was the unbroken forerunner of ICCTK, and that the defendant's claim was baseless. The defendant's argument that the declaration of trust over agricultural land required Land Control Board consent, based on Mucheru vs Mucheru, was rejected as distinguishable since the transfer had already been consented to and the plaintiff sought only a declaration over the existing title. The plaintiff's claim was allowed: the court declared the defendant a trustee, terminated the trust, ordered transfer of the land to the plaintiff (with the Deputy Registrar authorized to sign transfer documents if necessary), dismissed the counter-claim, and awarded the plaintiff costs of both the suit and the counter-claim.

Key legal issues

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01

Whether ICCTK, successor to Misemwa Village Project, proved that the defendant holds the suit land in trust for it

Holding

Yes - the plaintiff proved its case on a balance of probabilities; the land was bought with ICCT funds channelled through Misemwa Village Project, of which ICCTK is the unbroken continuation

Reasoning

The court traced the genesis of Misemwa Village Project to David Lamont of ICCT (UK), found the purchase funds of Kshs.250,000 came from the project's account funded by ICCT, and noted the defendant's own admissions in prior criminal and civil proceedings. ICCTK was registered later by the same officials, so the link was unbroken and it would be unfair to defeat the claim for lack of registration at the material time.

p. 3
02

Whether the declaration of trust over agricultural land required Land Control Board consent, rendering the suit void

Holding

No - the authority cited by the defendant (Mucheru vs Mucheru) was distinguished; the dealing had already occurred with consent, and the plaintiff only seeks a declaration that the existing title is held in trust

Reasoning

Section 6(2) of the Land Control Act declares a trust of agricultural land to be a dealing, but in Mucheru the trust declaration would have divided the land into two titles. Here the transfer to the defendant had already been consented to and registered; the plaintiff seeks only a declaration over the existing title, which does not require fresh consent.

p. 5
03

Whether the defendant was an employee of ICCT such that the press advertisement warning the public was justified

Holding

Yes - the defendant, as chairman of Misemwa Village Project, was an employee, and ICCT as operator had authority to warn the public through the press advertisement

Reasoning

Margaret Njenga testified in the criminal case that she was an employee of Misemwa Village Project; the defendant as chairman was equally an employee. ICCT, as main operator of the project, was entitled to warn the public that the defendant had no authority to transact business on its behalf.

p. 4

Legal principles established

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  • A party cannot be expected to apply for Land Control Board consent before its rights in a suit have been determined; a declaration that an existing title is held in trust is not a dealing requiring consent where the transfer has already been consented to
  • Where land is purchased with funds from an organization and registered in an individual's name without disclosing trusteeship, the individual holds it in trust for that organization or its successor

Court orders

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  1. 1.Declaration that the defendant is holding title to Trans-Nzoia/Liyavo/212 in trust for the ICCTK (Plaintiff)
  2. 2.The trust is terminated and the suit land ordered transferred to the Plaintiff to be registered in its name
  3. 3.Should the defendant fail to transfer the suit land, the Deputy Registrar of the court is authorized to sign all documents to facilitate the transfer into the plaintiff's name
  4. 4.The defendant's counter-claim is dismissed with costs to the plaintiff
  5. 5.The defendant shall pay costs of the suit to the plaintiff

Authorities

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Legislation

  • Non Governmental Organizations Co-ordination ActNot specified
  • Land Control ActSection 6(1) and 6(2)
  • Statute Law (Repeal & Miscellaneous Amendments) Act 1980Not specified
  • Development and Use of Land (Planning) Regulations, 1961Not specified

Cases cited (1)

  • Mucheru vs Mucheru
    2000 EA 455
Jurisdiction invoked
Original civil jurisdiction of the High Court over a claim for declaration of trust and counter-claim for eviction (not expressly invoked in the judgment)

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, "International Child Care Trust(K) v David James Mbogo [2015] KEELC 282 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/282/eng@2015-07-15

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