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ELCDismissedMalindi ELC Plaint dated 1st August 2013· [2015] KEELC 618 (KLR)

Registered Trustee of Maximum Miracle Center v Andrew Mlewa Mkare [2015] KEELC 618 (KLR)

Environment and Land Court
13 March 2015
OAO. A. Angote
3,404 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan church lost its claim to Watamu property because it had no minutes or financial records proving members paid for it—the pastor's own loan documents won.

What this practically means

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Executive summary

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The Plaintiff, a registered trustee incorporated under the Trustees (Perpetual Succession) Act Cap 164, sued by plaint dated 1st August 2013 claiming to be the beneficial owner of plot no. 14 Watamu on which it operated its Maximum Miracle Centre, Watamu branch church. It sought a declaration of beneficial ownership, a mandatory injunction, a prohibitory injunction and damages for trespass, alleging that the Defendant, ordained as its pastor on 10th August 2008, had been entrusted with acquiring the property but unlawfully retained possession and ran his own ministry. The Defendant denied being entrusted, averring that he founded his own church in 2000, affiliated it to the Plaintiff in 2004, and personally purchased the suit property in 2007 with loan funds of Kshs.195,000 from Barclays Bank and Kshs.200,000 from Chuchungi Sacco, thereafter leasing it to the church for six years by an agreement of 22nd November 2007. Three defence witnesses, including a former regional overseer and the treasurer, corroborated this. The court found no minutes of the finance or projects committees, whose mandate under the Plaintiff's constitution covered such purchases, and no financial statements supporting the alleged members' contributions of Kshs.150,000. It held the purchase predated the Defendant's ordination and that the committee's execution of the lease was inconsistent with members' ownership. Finding the claim unproved on a balance of probabilities, the court dismissed the plaint with costs.

Key legal issues

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01

Whether members of the Watamu branch contributed to the purchase of the suit property

Holding

No - the court found no contribution was proved

Reasoning

The Plaintiff's own constitution vested handling of finances and oversight of projects in the finance and projects committees, not the pastor. PW2 alleged members contributed Kshs.150,000 but produced no minutes or financial statements. The Defendant produced bank and Sacco loan documents totalling Kshs.395,000 and the sale agreement of 6th June 2007 in his own name.

p. 5
02

Whether the Defendant acquired the property as trustee/agent of the Plaintiff

Holding

No - the Defendant was not ordained until 10th August 2008, after the June 2007 purchase

Reasoning

The purchase predated the Defendant's ordination, so he could not have acted on the church's behalf as pastor. Further, the church committee itself signed a six-year lease of the property on 22nd November 2007, inconsistent with the claim that members had bought it.

p. 5
03

Standard of proof

Holding

Civil claim must be proved on a balance of probabilities; Plaintiff failed

Reasoning

The court weighed the documentary evidence of the Defendant's loans and sale agreement against the Plaintiff's oral testimony unsupported by records and found the Plaintiff had not discharged its burden.

p. 6

Legal principles established

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  • A party alleging that property was acquired on trust from members' contributions must prove it, including by production of minutes and financial records of the committee mandated by the constitution to handle such purchases
  • A person cannot be said to have acquired property on behalf of a church as its pastor before being ordained or recognized as such

Court orders

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  1. 1.Dismissal of the Plaintiff's Plaint dated 1st August 2013 with costs

Authorities

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Legislation

  • Trustees (Perpetual Succession) ActCap 164

Cases cited (2)

  • Dawkins Vs Dawkins
    183 Kan.323(1985) 328 P. 2d 346
  • Church of God in Christ Inc. Vs Stone
    Civ. A. No. 76-77
Jurisdiction invoked
Original civil jurisdiction over a dispute relating to ownership of land (plot no. 14 Watamu); Plaintiff a registered trustee under the Trustees (Perpetual Succession) Act Cap 164

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, "Registered Trustee of Maximum Miracle Center v Andrew Mlewa Mkare [2015] KEELC 618 (KLR)", Case Analysis (2015). Malindi ELC Plaint dated 1st August 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/618/eng@2015-03-13

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