Eric Lumosi Asiligwa & 2 others v Peter Felix Baumgartner [2018] KEELC 2144 (KLR)
The bottom line
#The Environment and Land Court ruled that land bought for a school belongs to the NGO, not the individuals named on the title deeds.
What this practically means
#Executive summary
#Key legal issues
#Whether the registered proprietors of the two parcels were entitled to a sale and distribution of the proceeds
No. The parcels are held on a resulting trust for Gentiana Development Network for the benefit of the school and the community.
The court found the parties' common intention was to construct a school for poor children. The 1st Plaintiff produced no evidence of payment of the purchase price; funds came from the Defendant and Swiss sponsors. The registered proprietors therefore hold on resulting trust, and the Plaintiffs' claim to have the land sold and proceeds shared fails.
Effect of the Defendant's Swiss nationality on the title deeds
Under Article 65 of the Constitution, the title deeds conferring absolute proprietorship on the Defendant are regarded as conferring no more than a 99-year leasehold.
Article 65(1) restricts non-citizens to leasehold tenure not exceeding 99 years, and Article 65(2) deems documents conferring greater interests to confer a 99-year leasehold. The court applied this to both title deeds on which the Defendant was registered as absolute proprietor.
Whether the 1st Plaintiff proved payment of the purchase price for the Suit Property
He did not; the court found the funds were raised by the Defendant and Swiss sponsors.
Despite claiming to have paid Kshs. 375,000/= from his savings, the 1st Plaintiff adduced no evidence of such payment, and there was no sale agreement. Documentary evidence showed the Defendant paid the deposit and further sums through his bank account and via the 1st Plaintiff as his agent.
Legal principles established
#- A non-citizen may only hold land on leasehold tenure not exceeding 99 years; documents conferring a greater interest are regarded as conferring a 99-year leasehold
- Where persons registered as proprietors did not provide the purchase consideration, they are presumed to hold the land on resulting trust for those who paid, and the burden of rebutting that presumption lies on the registered proprietors
- Assets of an unincorporated association formed for charitable educational purposes do not fall to be distributed among persons named on the title; a registered NGO is a body corporate capable of holding property
Court orders
#- 1.Dagoretti/Waithaka/1460 and Dagoretti/Waithaka/1463 to be registered in the name of Gentiana Development Network
- 2.Names of Eric Lumosi Asiligwa, Richard Sang Salat and Peter Felix Baumgartner cancelled from the title deed in respect of Dagoretti/Waithaka/1460
- 3.Names of Peter Felix Baumgartner and Eric Lumosi Asiligwa cancelled from the title deed for Dagoretti/Waithaka/1463
- 4.The Land Registrar directed to amend the records accordingly and issue title deeds to Gentiana Development Network
- 5.The Originating Summons dismissed with costs to the Defendant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (not expressly cited); Originating Summons under the Trustees (Perpetual Succession) Act Cap 164 and land law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eric Lumosi Asiligwa & 2 others v Peter Felix Baumgartner [2018] KEELC 2144 (KLR)", Case Analysis (2018). E.L.C. Case No. 869 of 2013 (O.S.) (as consolidated with Civil Case No. 957 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2144/eng@2018-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.