Deborah Ann Kling Rooney & another v Rukia Njeri Kadidi [2020] KEELC 876 (KLR)
The bottom line
#A Kenyan court cancelled a trustee's land titles and returned two Kajiado parcels to the school whose founder had actually paid for them.
What this practically means
#Executive summary
#Key legal issues
#Whether a trust arose between the 1st Plaintiff and the Defendant in the acquisition of the suit lands
A resulting trust arose in favour of the 1st Plaintiff who advanced all the purchase monies; registration in the Defendant's name was immaterial, and there was intent to register the lands in the name of the 2nd Plaintiff.
PW1 testified she financed the purchase through the Defendant because, as a US citizen, she could not own agricultural land. An email from the Defendant stated the titles were held 'in trust for Tembea Academy'. The court applied Snell's Equity on resulting trusts and the Twalib Hatayan decision, finding that the purchase money came wholly from the 1st Plaintiff and that the Defendant's evidence was uncontroverted after substituted service. A resulting trust automatically arises in favour of the person advancing the purchase money.
Whether the court can order rectification of the register and cancellation of the Defendant's titles
Yes. The court directed the District Land Registrar, Kajiado to rectify the register, cancel the Defendant's titles and register the transfer in favour of the 2nd Plaintiff.
The court considered sections 28 and 143 of the repealed Registered Land Act and section 80 of the Land Registration Act. Section 28 preserves indefeasibility subject to a proprietor's duties as trustee, and section 143/80 permit rectification where registration was obtained by fraud or mistake. Relying on the equitable principles and the Mary Ruguru Njoroge decision on the evidentiary threshold for rectification, the court was satisfied the Plaintiffs had proved the lands belonged to the 2nd Plaintiff.
Who should bear the costs of the suit
The Defendant was to bear the costs of the suit.
The court found that the Plaintiffs were the inconvenienced parties and were therefore entitled to costs. This followed directly from the Defendant's failure to defend the suit despite service and her refusal to transfer the lands as agreed.
Legal principles established
#- A resulting trust automatically arises in favour of the person who advances the purchase money, whether or not the property is registered in his name or that of another.
- A proprietor holding land as trustee is not protected by indefeasibility of title, and the register may be rectified where a registration was obtained or made by fraud or mistake.
Court orders
#- 1.A declaration that the Defendant's actions in retaining the suit properties is unfair, illegal and unlawful.
- 2.A declaration that the Defendant is not the absolute and indefeasible proprietor of KJD/KAPUTIEI NORTH/40782 and KJD/KAPUTIEI NORTH/21082.
- 3.A declaration that the 2nd Plaintiff is the rightful and lawful owner of KJD/KAPUTIEI NORTH/40782 and KJD/KAPUTIEI NORTH/21082.
- 4.The District Land Registrar, Kajiado directed to rectify the register, cancel the titles for KJD/KAPUTIEI NORTH/40782 and KJD/KAPUTIEI NORTH/21082 held in the name of the Defendant and register the transfer in favour of the 2nd Plaintiff Board of Management of Tembea Academy and issue it with Certificates of Title to that effect.
- 5.A permanent injunction restraining the Defendant from entering into, fencing, building, selling, transferring and or in any way interfering with the Plaintiffs' lawful use of the suit lands.
- 6.Costs of the suit awarded to the Plaintiffs.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land ownership, trust and rectification of register disputes (Environment and Land Court Act); suit commenced by Plaint dated 17th January 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Deborah Ann Kling Rooney & another v Rukia Njeri Kadidi [2020] KEELC 876 (KLR)", Case Analysis (2020). ELC Case No. 1 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/876/eng@2020-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.