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ELCPartially AllowedNot stated in the judgment (application dated 21/6/2018, filed 25/6/2018, in the main suit)· [2018] KEELC 891 (KLR)

Robert Mukarani Simiti & 2 others v Peter Badhia & 3 others [2018] KEELC 891 (KLR)

Environment and Land Court
13 November 2018
1,779 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court evicted charity founders who used donated land for personal benefit, ruling that charitable land belongs to the charity, not its pioneers.

What this practically means

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Executive summary

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The defendants/applicants moved the court by notice of motion dated 21/6/2018 under Sections 1A, 1B, 3, 3A and 34(1) of the Civil Procedure Act and Order 51 Rule 10 of the Civil Procedure Rules, seeking eviction of the plaintiffs from Kiminini/Kinyoro Block 4/27 and 4/28, correction of the register to read Dr. Harlod Timothy Pierce in trust for Faith Centre Children's Home, and security for the eviction from the Deputy County Commissioner. They relied on the court's judgment of 8/3/2017, which found Dr. Pierce solely funded the purchase of the suit properties and that the plaintiffs' suit was misconceived. The plaintiffs opposed, arguing the court was functus officio after judgment, the reliefs duplicated a denied counterclaim (disputed - the amendment introducing the counterclaim was dismissed on 15/5/2013), and the application was belated and abusive. The court found the plaintiffs' conduct breached the trust over the donor-funded charitable enterprise and that eviction was merited. It declined to grant the register-correction prayer as framed, noting no trustees of Faith Centre Children's Home were named, and instead ordered registration in the name of the Public Trustee to hold on behalf of Faith Centre Children's Home, with day-to-day management by the institution's trustees. The plaintiffs were ordered to vacate and hand over the land with immediate effect, in default of which they would be evicted, and to bear the application's costs jointly and severally.

Key legal issues

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01

Breach of trust by plaintiffs in respect of donor-funded land

Holding

The plaintiffs' conduct breached the trust and disentitled them from dealing with the land and assets of the charitable enterprise; eviction was merited

Reasoning

The court relied on its own judgment of 8/3/2017, which found that Dr. Pierce solely provided funds for the purchase of the suit properties and that the plaintiffs' suit was misconceived. The plaintiffs, having used the trust property for selfish ends, could not continue in occupation or control of the land.

p. 2
02

Functus officio objection

Holding

The court did not accept the objection as a bar; it exercised its powers to enforce and complete the effect of its judgment, including varying the mode of vesting the land

Reasoning

The respondents argued the court could not grant by application the substantive reliefs denied in the judgment and could only be corrected on appeal. The court nonetheless found the eviction application merited, grounded in its own findings on the judgment, and fashioned orders vesting the land in the Public Trustee rather than the individual applicant.

p. 2
03

Whether the counterclaim had been dismissed (no duplication)

Holding

The court verified from its record that the application to amend the defence to include a counterclaim was dismissed on 15/5/2013, so there was no duplication of reliefs

Reasoning

The respondents claimed the application duplicated counterclaim prayers already denied. The applicants submitted there was no counterclaim because the amendment was dismissed. The court perused the record and confirmed the applicants' position, removing the duplication objection.

p. 2

Legal principles established

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  • A public charitable enterprise outlives its pioneers and should be perpetually treated as public and charitable unless shown otherwise; pioneers cannot seize and dispose of trust land for personal benefit
  • Upon commencement of a charitable enterprise, control over title and use of the land ceases to be the personal preserve of the founders
  • Where parties hold land for a charitable purpose, appropriate vesting can be in the Public Trustee of the Republic of Kenya with management by the trustees of the institution

Court orders

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  1. 1.The plaintiffs/respondents, their servants, agents or anyone claiming through them to remove themselves from land title numbers Kiminini/Kinyoro Block 4/27 and Kiminini/Kinyoro Block 4/28 and hand over the said lands to the Trustees of the Faith Centre Children's Home with immediate effect, in default of which they shall be evicted
  2. 2.Subject to governmental regulation mechanisms, the physical management of the land and assets and their day-to-day use for the purposes of the Faith Centre Children's Home shall be the responsibility of the Trustees of the Faith Centre Children's Home
  3. 3.The land comprised in title numbers Kiminini/Kinyoro Block 4/27 and 4/28 shall be registered in the name of the Public Trustee to hold it on behalf of Faith Centre Children's Home, and the Deputy Registrar of the court shall execute all documents necessary to effect that registration
  4. 4.The plaintiffs shall jointly and severally bear the costs of the application

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A and 34(1)
  • Civil Procedure RulesOrder 51 Rule 10
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 34(1) of the Civil Procedure Act 2010 and Order 51 Rule 10 of the Civil Procedure Rules

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, "Robert Mukarani Simiti & 2 others v Peter Badhia & 3 others [2018] KEELC 891 (KLR)", Case Analysis (2018). Not stated in the judgment (application dated 21/6/2018, filed 25/6/2018, in the main suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/891/eng@2018-11-13

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