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ELCPartially AllowedELC. Case No. 372 of 2009· [2017] KEELC 1718 (KLR)

Mudhihiri Mohammed & 2 others v Ahmed Imani Ali & 4 others [2017] KEELC 1718 (KLR)

Environment and Land Court
19 September 2017
KBK Bor
1,555 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court confirmed the trustees' ownership of the Pumwani community property and ordered the Mosque Committee to stop blocking it.

What this practically means

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Executive summary

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The Plaintiffs, trustees of Pumwani Muslim Community Centre Association, sued the officials and committee of Pumwani Riyadha Mosque Committee seeking a mandatory injunction to reopen the entrance to L.R. No. 209/2378/15 (the Suit Property), a permanent injunction against trespass or interference, and general damages, after the Defendants blocked the entrance and wrote to tenants directing rent to a third party from July 2009. The Defendants admitted the property was amalgamated from plots allocated to the Pumwani Muslim Community and administered as a community centre, but contended that the 1st Plaintiff breached fiduciary duty by registering himself as owner, that the Plaintiffs hold the property on constructive trust for the 5th Defendant, and sought an order for transfer of the property to the 5th Defendant. The court framed six issues, including whether the property was acquired for the Muslim community and whether a constructive trust existed. The Plaintiffs testified and produced the certificate of registration, constitution, lease of 1999 granting the property to the three as trustees, the trust deed, allotment letters and a 1959 newspaper article on the construction of Ukumbusho Hall. The Defendants called no evidence, their counsel claiming witnesses were victims of forced disappearances. The court found the Plaintiffs proved ownership by the Association and their trusteeship, and that no evidence supported the constructive trust claim or entitlement to transfer. Prayers (a) and (b) - the mandatory and permanent injunctions - were granted, with costs to the Plaintiffs; the general damages prayer was not among the orders made.

Key legal issues

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01

Whether the Plaintiffs are the registered trustees of the Suit Property

Holding

The Plaintiffs proved registration of the Association as owner and themselves as trustees mandated to administer the property for the Muslim community in Pumwani.

Reasoning

The Plaintiffs produced the certificate of registration of the Association dated 7/08/1959, its Constitution and membership list, the letter of allotment, the lease dated 20/12/1999 granting the property to the three named persons as trustees for the Association, and the trust deed of 11/05/1999. The Defendants, who filed a defence but called no evidence, did not displace this documentary proof. The court found the registration and trusteeship established on the Plaintiffs' uncontroverted evidence.

p. 4
02

Whether the Plaintiffs hold the Suit Property on constructive trust for the 5th Defendant

Holding

The Defendants failed to prove the constructive trust claim because they called no evidence.

Reasoning

The Defendants pleaded that the 1st Plaintiff breached fiduciary duty by registering himself as owner and that the Plaintiffs hold the property on constructive trust for the 5th Defendant. However, after the Plaintiffs closed their case, defence counsel could not procure witnesses, alleging forced disappearances, and the defence elected to rely on the defence alone. Allegations in pleadings unsupported by evidence cannot sustain a claim, so the constructive trust and transfer claims failed.

p. 3

Legal principles established

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  • A party who does not call evidence in support of its claim fails to prove it

Court orders

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  1. 1.Prayer (a) of the plaint granted - a mandatory injunction compelling the Defendants to open the entrance to the Suit Property and remove the metal railings blocking the entrance to the parking area
  2. 2.Prayer (b) of the plaint granted - a permanent injunction restraining the Defendants from entering, trespassing on, or dealing with the Suit Property
  3. 3.Plaintiffs awarded the costs of the suit

Authorities

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Legislation

  • Societies Act
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Mudhihiri Mohammed & 2 others v Ahmed Imani Ali & 4 others [2017] KEELC 1718 (KLR)", Case Analysis (2017). ELC. Case No. 372 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1718/eng@2017-09-19

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