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ELCDismissedBungoma ELC Case ( plaint dated 28th November 2013 )· [2019] KEELC 676 (KLR)

Cerementina Masinde Libonda & 2 others v Albert Masinde Libonda & 2 others [2019] KEELC 676 (KLR)

Environment and Land Court
14 November 2019
4,030 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The plaintiffs, a mother and her three sons, sued the 1st defendant (the eldest son and registered proprietor), Pastor Ferdinand Masolo's Kenya Church of Christ, and the District Land Registrar, seeking an injunction, declarations that parcel E. Bukusu/S. Kanduyi/1951 was family land held in trust and that its 2012 sub-division and the sale of parcel 15897 to the Kenya Church of Christ were fraudulent, cancellation of the sub-divisions and re-registration in fixed family proportions. Before the hearing on 28th May 2019 the 1st and 3rd plaintiffs withdrew, leaving the 2nd plaintiff, Fred Nyongesa Libonda, to prosecute the suit. The evidence was undisputed that the suit land had been registered in the 1st defendant's name as family trustee, was amicably shared among the family members in agreed proportions, and that each member, including the 2nd plaintiff, sold their share and moved elsewhere. The court found no abuse of trust: the 1st defendant's dealings were open and consented to. The 2nd plaintiff was estopped by conduct from reopening the disposition. The claim that the caution and restriction over parcel 15897 were fraudulently failed because the restriction had been lifted by a court order of Hon. A. Omollo J in Bungoma ELC Misc. Application No. 73 of 2013, and any aggrieved party should have appealed. The court also held that the 2nd plaintiff was improperly litigating the Namisi Church of Christ's interests, and no adverse orders could issue against the Kenya Church of Christ, a non-party title-holder. The suit was dismissed with costs to the defendants payable by the 2nd plaintiff.

Key legal issues

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01

Abuse of trust by the 1st defendant as family trustee

Holding

No abuse of trust was established; the sub-division and dealings were open, transparent and consented to by all beneficiaries

Reasoning

Both parties' evidence showed the 8¼ acre suit land was amicably shared in fixed proportions, after which each family member, including the 2nd plaintiff, sold their share and moved elsewhere. Once the beneficiaries themselves distributed and sold the land, the trustee's mandate was not breached by the 2012 sub-division. The plaint's allegation of stealthy, fraudulent dealing was contradicted by the plaintiffs' own witness statements and cross-examination.

p. 4
02

Estoppel by conduct against the 2nd plaintiff

Holding

The 2nd plaintiff was estopped from reopening the issue of the suit land having voluntarily sold and relinquished his rights

Reasoning

Relying on D & C Builders v Sidney Res on estoppel by conduct, the court held that the plaintiffs, by distributing the land and selling their shares to third parties, led the 1st defendant to suppose their strict rights would not be enforced. They could not retain rights in what they had voluntarily disposed of, so the 2nd plaintiff's claim failed on that basis.

p. 5
03

Removal of the caution and restriction over parcel 15897

Holding

The removal was pursuant to a valid court order lifting the restriction; the 2nd plaintiff could not resile from it in this suit

Reasoning

The restriction placed by Pastor James Misiko on parcel 15897 was lifted by order of Hon. A. Omollo J in Bungoma ELC Misc Application No. 73 of 2013. The 3rd defendant complied with that order. Any party aggrieved should have appealed; the claim of fraudulent removal was unsupported by evidence.

p. 5
04

Interests of the Namisi Church of Christ and the absent Kenya Church of Christ

Holding

The 2nd plaintiff was improperly litigating the interests of a third party not joined to the suit

Reasoning

The court found the 2nd plaintiff was pursuing Pastor James Misiko Walubayi's Namisi Church of Christ's interest in parcel 15897. If the church had a legitimate claim it should have been enjoined; the Kenya Church of Christ, holding title, was not a party, so no adverse orders could issue against it.

p. 5

Legal principles established

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  • Estoppel by conduct bars a party who has voluntarily disposed of and relinquished rights in land from later challenging dispositions of it
  • A trustee's duty is discharged when the beneficiaries themselves distribute the trust property and sell their respective shares
  • Adverse orders cannot be made against a registered title-holder who is not a party to the proceedings

Court orders

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  1. 1.This suit is dismissed
  2. 2.The 2nd plaintiff shall meet the defendants' costs

Authorities

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Cases cited (1)

  • D & C Builders v Sidney Res
    [1966] 2 QB
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to title to and interests in land

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, "Cerementina Masinde Libonda & 2 others v Albert Masinde Libonda & 2 others [2019] KEELC 676 (KLR)", Case Analysis (2019). Bungoma ELC Case ( plaint dated 28th November 2013 ). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/676/eng@2019-11-14

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