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ELCDismissedELC Case (Machakos), Plaint dated 22nd October, 2009· [2019] KEELC 4541 (KLR)

Kenso Orina Mochache v Godfrey Muhenge Kivanze & 2 others [2019] KEELC 4541 (KLR)

Environment and Land Court
15 February 2019
4,757 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that land registered in private names still belongs to a children's home it was bought for, and the individuals must transfer it back.

What this practically means

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Executive summary

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The Plaintiff sued for a declaration that L.R. No. 13302/43, a 2-acre sub-division of L.R. No. 13302/5, was jointly owned by him, the 1st Defendant and the 2nd Defendant as partners trading as Mlolongo Care Investment, and sought its equal sub-division. The 2nd Defendant, an advocate, admitted the claim. The 1st Defendant and the 3rd Defendant (Trustees of Liberty Care Centre Children's Home, enjoined by a Ruling of 14th November 2014) contended that the land was purchased from NSSF for the relocation of the Children's Home after NSSF sold its former land to Oil Com (K) Ltd, and that the title was registered in the three names in trust for the Home. The court examined the Sale Agreement of 23rd January 2007, the letter of 29th December 2005 seeking soft payment terms for a charitable Home, the sub-division approval for '27 Residential Plots and a Children's Home', and Oil Com's funding of the relocation. It found the Plaintiff and the 2nd Defendant knew the purchase was on behalf of the Home, benefited from the 29 sold plots without paying, and would abdicate their fiduciary duty by claiming the 2 acres. The court adopted the Advocates Disciplinary Committee's finding of professional misconduct against the 2nd Defendant for conflict of interest. The Plaint and the 2nd Defendant's admission were dismissed with costs; the 3rd Defendant's Counter-claim succeeded: a declaration of trust, an order to transfer the land to the Home's Trustees, surrender of the title and Deed Plan, and a permanent injunction.

Key legal issues

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01

Beneficial ownership versus registered title - whether registration in the names of the three individuals defeated the Children's Home's claim

Holding

The registered proprietors hold L.R. No. 13302/43 in trust for Liberty Care Centre Children's Home and must transfer it to the Home's Trustees

Reasoning

The Sale Agreement of 23rd January 2007 was executed by the three individuals trading as Mlolongo Care Investment, but the land was sold by NSSF to relocate the Children's Home after its earlier land was sold to Oil Com (K) Ltd. The sub-division application was for '27 Residential Plots and a Children's Home'. The Plaintiff and 2nd Defendant knew of the Home's occupation and its purpose, and obtained plots without paying for them, so they hold the remaining 2 acres in trust for the Home.

p. 5
02

Fiduciary and professional duty of the 2nd Defendant as advocate and co-purchaser

Holding

The 2nd Defendant breached his fiduciary duty; the court adopted the Advocates Disciplinary Committee's finding of professional misconduct based on conflict of interest and failure to render accounts

Reasoning

The 2nd Defendant acted as advocate for the purchasers while also being one of them and having registered the business name used in the transaction. The Disciplinary Committee found he failed to inform the complainant of services rendered and of a conflict between his own interest and his client's. The court agreed entirely with that decision, holding he and the Plaintiff were aware the land was purchased for the Home's relocation.

p. 5

Legal principles established

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  • Where parties acquire land for a charitable purpose and are registered as proprietors, they may be held to hold the title in trust for the intended beneficiary notwithstanding registration in their names
  • An advocate who is a party to a transaction and acts for another party cannot claim the client's property and breaches his fiduciary duty by so doing

Court orders

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  1. 1.The Plaintiff's Plaint and the 2nd Defendant's Statement of Admission dismissed with costs
  2. 2.Declaration that the Plaintiff, the 1st Defendant and the 2nd Defendant hold the title document and Deed Plan in respect of L.R. No. 13302/43 in trust for the 3rd Defendant
  3. 3.The Plaintiff, the 1st Defendant's legal representative and the 2nd Defendant to execute a transfer of L.R. No. 13302/43 to the Trustees of the 3rd Defendant
  4. 4.The 2nd Defendant to surrender the original title document and Deed Plan for L.R. No. 13302/43 to the 3rd Defendant's Trustees
  5. 5.Permanent injunction restraining the Plaintiff and the 2nd Defendant from entering, trespassing, occupying, developing or interfering with the 3rd Defendant's occupation of L.R. No. 13302/43
  6. 6.The Plaintiff and the 2nd Defendant to pay the costs of the suit and the Counter-claim to the 3rd Defendant

Authorities

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Legislation

  • Children's Actnot specified
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (not expressly stated in the judgment)

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, "Kenso Orina Mochache v Godfrey Muhenge Kivanze & 2 others [2019] KEELC 4541 (KLR)", Case Analysis (2019). ELC Case (Machakos), Plaint dated 22nd October, 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4541/eng@2019-02-15

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