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ELCDismissedE.L.C. Case No. 869 of 2013 (O.S.) (as consolidated with Civil Case No. 957 of 2012)· [2018] KEELC 2144 (KLR)

Eric Lumosi Asiligwa & 2 others v Peter Felix Baumgartner [2018] KEELC 2144 (KLR)

Environment and Land Court
26 July 2018
6,562 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiffs filed an Originating Summons seeking the winding up of Gentiana Self Help Centre Registered Trustees, an order that L.R. No. Dagoretti/Waithaka/1460 (the Suit Property, on which Gentiana Primary School stands) and Dagoretti/Waithaka/1463 be sold and the proceeds distributed proportionately among the registered trustees, and a permanent injunction restraining the Defendant from dealing with the trust's assets. The matter was consolidated with ELC Case No. 957 of 2012, in which the Defendant claimed the two parcels under a resulting trust, asserting that the Plaintiffs, his former employees, never contributed to the purchase price and that the land was bought solely with his funds and Swiss donations for the school. The 2nd Plaintiff withdrew. The 1st Plaintiff testified that he bought the Suit Property for Kshs. 375,000/= and included the others on the title to assist fundraising. The court found the 1st Plaintiff failed to prove any contribution, that the purchase and development funds came from the Defendant and Swiss sponsors, and that the parties' common intention was to build a school for poor children. It held that the registered proprietors hold the parcels on a resulting trust for Gentiana Development Network, a registered NGO, and applied Article 65 of the Constitution to treat the Defendant's absolute proprietorship as a 99-year leasehold. The Originating Summons was dismissed with costs to the Defendant, with directions that both parcels be registered in the name of Gentiana Development Network and the proprietors' names cancelled.

Key legal issues

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01

Whether the registered proprietors of the two parcels were entitled to a sale and distribution of the proceeds

Holding

No. The parcels are held on a resulting trust for Gentiana Development Network for the benefit of the school and the community.

Reasoning

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.

p. 6
02

Effect of the Defendant's Swiss nationality on the title deeds

Holding

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.

Reasoning

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.

p. 6
03

Whether the 1st Plaintiff proved payment of the purchase price for the Suit Property

Holding

He did not; the court found the funds were raised by the Defendant and Swiss sponsors.

Reasoning

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

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  • 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

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  1. 1.Dagoretti/Waithaka/1460 and Dagoretti/Waithaka/1463 to be registered in the name of Gentiana Development Network
  2. 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. 3.Names of Peter Felix Baumgartner and Eric Lumosi Asiligwa cancelled from the title deed for Dagoretti/Waithaka/1463
  4. 4.The Land Registrar directed to amend the records accordingly and issue title deeds to Gentiana Development Network
  5. 5.The Originating Summons dismissed with costs to the Defendant

Authorities

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Legislation

  • Trustees (Perpetual Succession) ActCap 164
  • Civil Procedure RulesOrder 25 Rule 1
  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 65(1)
  • Constitution of KenyaArticle 65(2)
  • Registration of Titles Act (repealed)Section 23
  • Land Control ActSection 9
  • Land Registration ActSection 26
  • Land Registration ActSection 80
  • Non-Governmental Organizations Co-ordination ActSection 10
  • Non-Governmental Organizations Co-ordination ActSection 12

Cases cited (2)

  • Justina Muringa Kanyiri v. John Mutunga
    [2009] eKLR
  • Alice Chemtai Too v. Nickson Kipkurui Korir and 2 Others
    [2015] eKLR
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

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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, "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.