Anne Naliaka & 3 others v Benson Nyongesa Wamalwa [2018] KEELC 3982 (KLR)
The bottom line
#A Kitale court cancelled a church's title to donor-funded land and handed it to the Public Trustee to protect a children's charity project.
What this practically means
#Executive summary
#Key legal issues
#Whether the registered owner (Covenant of Holiness Ministries) holds the suit land in trust for Kitale Family House of Hope
Yes - registration in the church's name was wrongful; the land is held in trust for the project begun under the Community Based Organization.
The land was purchased in 2007-2008 with donor funds channelled through NACS for a community project under a CBO registered on 19/11/2007, before the defendant's society was registered on 30/8/2010. No evidence showed the CBO converted into a church. The MOU of 5/7/2010 bound the four signatories to hold the land in trust for the project, yet the defendant procured their signatures to register the land under his church's name. The donor policy against funding religious institutions reinforced this.
Whether Kitale Family House of Hope has capacity to have 2 acres excised and transferred to it
No - it lacks demonstrated legal capacity to hold land in its own name.
Relying on Free Pentecostal Fellowship in Kenya v Kenya Commercial Bank and Josephat Kimani Mirara v Romano K. Mikigu, the court held an unincorporated organization cannot hold land. Kitale Family House of Hope's registration as a charitable children's institution was not shown to be renewed, and no official confirmation of its officials or status was produced, so the excision and transfer prayer could not be granted.
Whether an injunction should issue restraining the defendant from trespassing on or interfering with the project
Yes - Prayer (a) granted, as the defendant's claim to the land and project was unjustified.
The court found the development partners financed the land purchase and infrastructure in the belief they were serving the public, and found no justification in the defendant's claim. Although the plaintiffs had not demonstrated an existing trusteeship into which title should vest, the court granted the injunction and then addressed the wider question of securing the land for the charitable project.
What orders should issue to secure the land for the charitable project
The title in the church's name to be cancelled and a fresh title issued to the Public Trustee of the Republic of Kenya to hold in trust for the project.
Invoking Sections 17, 18 and 25(1) of the Public Trustee Act, the court held that a neutral trustee would safeguard the land and infrastructure and guarantee continuity of the project of great public importance, especially given the parties' lack of goodwill and the absence of the Attorney General. The court exercised its inherent power to make this order even though not sought.
Legal principles established
#- An unincorporated society or association lacks legal capacity to own land in its own name and property purchased for it cannot vest in it; it must hold through lawful trustees.
- Where land bought with donor funds for a community-based project is wrongfully registered in the name of a church/society set up by one individual, that registration is wrongful and the registered owner holds the land in trust for the project.
- The court may, in the public interest and in exercise of its inherent power, appoint the Public Trustee to hold land in trust even where no such order is sought by the parties, under the Public Trustee Act.
Court orders
#- 1.Prayer No. (a) of the plaint granted - injunction restraining the defendant from trespassing on the premises or interfering with the running of the children's home and school, without precluding future reintegration of the defendant.
- 2.Prayer No. (b) granted to the extent that the suit land is now held in trust for Kitale Family House of Hope.
- 3.Prayer No. (c) denied - no order for excision and transfer of 2 acres to Kitale Family House of Hope.
- 4.Title to the suit land issued in the name of Covenant of Holiness Ministries cancelled; the Land Registrar to call up and cancel the title and issue a fresh title in the name of the Public Trustee of the Republic of Kenya to hold the land and infrastructure in trust on behalf of Kitale Family House of Hope.
- 5.The title deed so registered to be submitted to the Public Trustee of the Republic of Kenya for safekeeping through the Deputy Registrar of the court and not to be dealt with contrary to its original purpose.
- 6.Plaintiffs at liberty to continue managing the Kitale Family House of Hope Project for public benefit.
- 7.Each party to bear its own costs.
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land title Kwanza/Namanjalala Block 5/655; inherent power of the court to issue just orders invoked (paras 56-57).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anne Naliaka & 3 others v Benson Nyongesa Wamalwa [2018] KEELC 3982 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3982/eng@2018-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.