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ELCPartially AllowedELC No. 1479 of 2005· [2017] KEELC 535 (KLR)

GS v AB [2017] KEELC 535 (KLR)

Environment and Land Court
14 December 2017
KBK. BOR
3,157 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court ruled that an unmarried partner whose name was on the title alone actually co-owned the Kitisuru home equally with her ex.

What this practically means

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Executive summary

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The Plaintiff, a Greek businessman, sued the Defendant, his former Belgian common law wife, seeking a permanent injunction against dealing with the Kitisuru property ('the Suit Property'), a declaration that she never contributed to its purchase and that he solely paid the purchase price, an order compelling her to transfer it to him, access to the property, and rent of Kshs. 23,040,000 collected from tenants. The property had been bought in 2003 partly with proceeds of the Kyuna house, which the Plaintiff said he funded, and was registered in the Defendant's name. The Defendant denied sole contribution, claiming she sourced funds including a Belgian ING Bank loan, and that rent went to maintenance and the children. The court framed four issues: contribution, matrimonial home, trust, and reliefs. Applying Stack v Dowden, it held that registration in the Defendant's name created a presumption of sole ownership placing the onus on the Plaintiff, and surveyed the whole course of dealings, noting joint accounts, the Defendant's 40% shareholding in the purchasing company, her child-bearing role and the property's use as the matrimonial home. It found the parties intended joint ownership and declared a resulting trust in favour of the Plaintiff for a half share. The Plaintiff was ordered to be registered as co-owner and granted access. The rent claim, the declarations of sole contribution and the compelled transfer of the whole property failed; matters of Belgian maintenance orders were left to the Family Division. Each party bore its own costs.

Key legal issues

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01

Whether the Defendant contributed to the purchase of the Suit Property

Holding

The Plaintiff failed to prove sole payment; the funds trail (joint accounts, company funds in which the Defendant held 40%) made exclusive contribution impossible to establish

Reasoning

The cheque for Kshs. 3,250,000 for the Kyuna maisonette was drawn on a joint account, and the purchasing company's funds were held equally by the parties. The Plaintiff produced no evidence of the alleged 2.8 million Francs loan. Untranslated Belgian bank documents also undermined the Defendant's loan evidence, but the Plaintiff bore the burden and failed to discharge it.

p. 5
02

Whether the Defendant held the Suit Property in trust for the Plaintiff

Holding

A resulting trust was found in favour of the Plaintiff for a half share only, based on the parties' common intention to own jointly

Reasoning

Applying Stack v Dowden, the court examined the whole course of dealings: the property was the matrimonial home, finances were handled together, the Defendant played a role in child bearing and rearing, and registration in her name did not displace the inferred common intention of joint ownership. The trust found was for half, not the entirety.

p. 5
03

Whether the Plaintiff was entitled to rent collected by the Defendant

Holding

The claim for rent was refused despite the trust finding

Reasoning

Once joint ownership was found, the court declined to order repayment of rent, accepting that the Defendant applied it to the loan repayment, house maintenance and the children's upkeep. The related questions of maintenance obligations were held to belong to the Family Division.

p. 5

Legal principles established

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  • Where a property is registered in the sole name of one party, the presumption is sole ownership and the party claiming a beneficial interest bears the onus of proving it
  • The entire course of conduct between cohabiting parties, including registration in one party's name, may demonstrate a common intention of joint ownership
  • In determining beneficial interests under a constructive trust the court surveys the whole course of dealings, and where no inference can be drawn, equality is equity applies

Court orders

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  1. 1.Declaration that the parties own the Suit Property jointly, with the Plaintiff registered as co-owner of the Suit Property
  2. 2.Plaintiff to be allowed access to the Suit Property
  3. 3.Dismissal of the other prayers in the Amended Plaint, including the claim for Kshs. 23,040,000 in rent and the order compelling the Defendant to transfer the Suit Property
  4. 4.Each party to bear its own costs

Authorities

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Cases cited (1)

  • Stack v Dowden
    [2007] AC 432
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to title and ownership of land

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, "GS v AB [2017] KEELC 535 (KLR)", Case Analysis (2017). ELC No. 1479 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/535/eng@2017-12-14

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