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ELCPartially AllowedNot stated in judgment (plaint dated 15th March 2018)· [2019] KEELC 4478 (KLR)

Feisal Faraj v Hassan Mohamed Omar [2019] KEELC 4478 (KLR)

Environment and Land Court (High Court of Kenya), Mombasa
12 February 2019
CYC.K. Yano
1,252 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court transferred land registered in a wife's name to her husband, confirming that registration alone doesn't decide who truly owns family property.

What this practically means

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Executive summary

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The plaintiff sued by plaint dated 15th March 2018 seeking declarations that a 4/293th undivided share of Subdivision Number 284 Section III Mainland North (C.R. 7172/I) and three units (a 3-bedroom flat, a 2-bedroom flat and a bedsitter) on Plot MSA/BLOCK XVII/724, all registered in the defendant's name, were held by the defendant in trust for him under a constructive trust, together with orders for cancellation of the defendant's titles and registration of the plaintiff as proprietor. The plaintiff, a marine superintendent employed from 1979 to 2005, alleged he purchased the properties during the marriage — paying Kshs.3,500,000 for the plot units in 2000 (partly by cheque, cash, and an employer payment) and acquiring the undivided share in 1997 — but had them registered in the defendant's name, his first wife and a housewife, because his work kept him at sea for weeks. The defendant failed to enter appearance; interlocutory judgment was entered on 29th June 2018 and the suit proceeded to formal proof on 9th October 2018, where the plaintiff testified and produced exhibits 1–10 unchallenged. Applying Mbothu v Waititu (1986) KLR 171, the court held that trust must be proved by the party alleging it, but that registration in one name does not extinguish others' entitlements. Finding the plaintiff's evidence cogent and unrebutted, the court presumed a constructive trust and held the case proved on a balance of probabilities. Judgment was entered in terms of prayers (a), (b) and (c); given the family relationship, each party was ordered to bear their own costs.

Key legal issues

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01

Whether a constructive trust could be presumed in favour of the plaintiff over properties registered in the defendant's name

Holding

Yes. The plaintiff proved that he financed and acquired the suit properties and explained why they were registered in the defendant's name; the evidence was uncontroverted, so a constructive trust was presumed.

Reasoning

The court held that trust is an issue of both law and fact requiring proof by proper evidence, with the onus on the party alleging it. Relying on Mbothu v Waititu, intention must be clearly demonstrated before a trust is implied. The plaintiff gave unchallenged evidence that he fully financed the acquisitions and, being often at sea, had transactions done in his wife's name. With no rebutting evidence, the court found cogent, unrebutted proof of a constructive trust and that the plaintiff had proved his case on a balance of probabilities.

p. 2

Legal principles established

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  • A trust must be proved by the party alleging it; the court never implies a trust save to give effect to the parties' intention, which must be clearly demonstrated
  • Registration of land in one person's name does not extinguish the rights of others entitled to it nor relieve the proprietor of fiduciary duties as trustee

Court orders

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  1. 1.Judgment entered for the plaintiff against the defendant in terms of prayers (a), (b) and (c) of the plaint
  2. 2.Declaration that the suit properties are held by the defendant in trust for the plaintiff by virtue of a constructive trust
  3. 3.Order directing the land registrar to cancel the title and entries of the suit properties registered in the defendant's name
  4. 4.Order directing the land registrar to issue/register the titles of the suit properties in the name of the plaintiff
  5. 5.Each party to meet their own costs

Authorities

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Cases cited (1)

  • Mbothu & Others –v- Waititu & others
    (1986) KLR 171
Jurisdiction invoked
Original civil jurisdiction of the High Court over a claim relating to land (trust and registration of title); no specific constitutional provision cited

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, "Feisal Faraj v Hassan Mohamed Omar [2019] KEELC 4478 (KLR)", Case Analysis (2019). Not stated in judgment (plaint dated 15th March 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4478/eng@2019-02-12

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