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ELCPartially AllowedNot stated in the judgment as provided· [2018] KEELC 577 (KLR)

Mary Anne Obondo v Moses Namusasi Chikati [2018] KEELC 577 (KLR)

Environment and Land Court
27 November 2018
BEB M EbosoEOE O Obaga
1,236 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a brother must transfer a Nairobi property back to his sister, who paid for it but registered it in his name.

What this practically means

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Executive summary

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The plaintiff, elder sister of the defendant, sued over Title Number Dagoretti/Riruta/2533. By a plaint dated 13 July 2017 she sought a declaration that the defendant holds the parcel in trust for her, an order compelling transfer (with the deputy registrar empowered to execute the transfer in default), mesne profits, and costs. She testified that she bought the property in 2008 from John Kibagendi Moriasi and his wife for Kshs 2,000,000; because her work took her abroad frequently, she had the sale documents and title processed in the defendant's name on the understanding that he would hold it in trust and convey it to her at her convenience. The vendor corroborated that the plaintiff was the true purchaser and that the defendant only executed the contract documents and held the property on her behalf. The defendant, though served, did not attend the hearing; his defence that he had contributed Kshs 100,000 and that the plaintiff paid the balance because he had worked for her without salary for eight years was unsupported by any evidence. The court framed one issue: whether the defendant holds the property in trust for the plaintiff. It found the plaintiff's evidence established all essential elements of a trust and granted prayers (a), (b), (c) and (e). The claim for mesne profits failed because neither the plaintiff nor her counsel addressed it, and no basis for assessment was laid. Judgment signed by B M Eboso on 27 November 2018 and delivered by E O Obaga on 29 November 2018.

Key legal issues

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01

Whether the defendant holds the suit property in trust for the plaintiff

Holding

The defendant holds the property in trust for the plaintiff, who is the beneficial owner

Reasoning

The plaintiff testified that she purchased the property in 2008 for Kshs 2,000,000 and caused it to be registered in the defendant's name because she was frequently out of the country, on the understanding that he would hold it in trust. The vendor, PW 2, corroborated that the plaintiff was the true purchaser and that the defendant merely executed the contract documents and received the property on her behalf. The defendant's claim that he contributed Kshs 100,000 and that the plaintiff paid the balance on his behalf was unsupported by any evidence. The plaintiff's suit succeeded on prayers (a), (b), (c) and (e), but mesne profits failed for want of evidence.

p. 2

Legal principles established

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  • Where a purchaser causes property to be conveyed into the name of another to hold in trust for the purchaser, a resulting trust arises in favour of the beneficial owner
  • A party who pleads a defence must lead evidence to support it; an unsupported defence fails

Court orders

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  1. 1.A declaration that the defendant holds Parcel Number DAGORETTI/RIRUTA/2533 in trust for the plaintiff (prayer (a) granted)
  2. 2.An order that the defendant transfer Land Parcel Number DAGORETTI/RIRUTA/2533 to the plaintiff (prayer (b) granted)
  3. 3.The defendant to execute transfer documents to effect the transfer, or in the alternative the deputy registrar to execute the transfer documents (prayer (c) granted)
  4. 4.Costs of the suit to the plaintiff (prayer (e) granted)
  5. 5.Claim for mesne profits (prayer (d)) not awarded

Authorities

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Legislation

  • Law of Contract ActSection 3(3)

Cases cited (1)

  • Rose Naswa Masinde v Lilian Nekesa Simiyu Mukopi
    (2014) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute relating to Title Number Dagoretti/Riruta/2533

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, "Mary Anne Obondo v Moses Namusasi Chikati [2018] KEELC 577 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/577/eng@2018-11-27

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