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ELCPartially AllowedCivil Case No. 207 of 2016· [2020] KEELC 2747 (KLR)

FPS v SKM [2020] KEELC 2747 (KLR)

Environment and Land Court
12 May 2020
AOA. Omollo
2,835 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a man who paid for a house still shares it with his partner and children, protecting the family home from sale or damage.

What this practically means

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Executive summary

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The plaintiff sued the defendant claiming he had funded the purchase of Maisonette Number I on Plot xxxx Section I Mainland North and that the defendant, who was registered as owner on his instructions and with funds he provided, held it in trust for him. He sought a declaration of trust, mandatory injunctions compelling release of the title documents and execution of a transfer, and costs. The defendant, with whom the plaintiff has two children and whom she described as her husband, denied the trust, asserting the property was bought as the matrimonial home with joint contribution, and counter-claimed for a declaration of matrimonial property, permanent and mandatory injunctions against the plaintiff, and declarations on parental responsibility and maintenance of the minors. Adopting the plaintiff's issues, the court found that although the plaintiff paid the purchase price, he acquiesced in the defendant and children living on the property as their home; a trustee relationship was held to exist between the plaintiff, the defendant and the children, and section 25(2) of the Land Registration Act preserves the defendant's obligations as trustee. However, the plaintiff failed to prove any threatened disposition of the property, so no cause of action had accrued and the suit was dismissed. The court declined the matrimonial property and parental responsibility declarations for want of jurisdiction, but granted the injunctions sought in the counter-claim restraining the plaintiff from selling, disposing of, wasting or intermeddling with the property. Each party was ordered to bear their own costs. Judgment was delivered electronically on 12 May 2020 owing to the Covid-19 pandemic.

Key legal issues

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01

Whether the defendant holds the suit property in trust for the plaintiff

Holding

A trustee relationship was found, but it extends to the plaintiff, the defendant and their two children jointly; the plaintiff cannot be declared sole owner because his conduct led the family to believe the property was for joint use

Reasoning

Although the plaintiff paid the purchase price, he acquiesced in the defendant and the two children living on the property as their home from the time of purchase. The court held the trustee relationship runs between the plaintiff and the defendant and towards the children. Section 25(2) of the Land Registration Act preserves a proprietor's trustee obligations, so the defendant holds the property for the benefit of the plaintiff and the children.

p. 3
02

Whether the plaintiff proved entitlement to the declaratory and mandatory injunction reliefs

Holding

The suit was dismissed because no cause of action had accrued - the plaintiff gave no evidence that the defendant was disposing of the property

Reasoning

The plaintiff alleged the defendant intended to let, sell or charge the property without his consent, but led no evidence to substantiate this. He was still residing on the property and had not been evicted. Without a threatened disposition, the equitable remedies sought could not issue, and the claim failed on the standard of proof.

p. 4
03

Whether the court could determine the matrimonial property and parental responsibility claims

Holding

The Environment and Land Court lacks jurisdiction to declare property matrimonial or to adjudicate parental responsibility over minors

Reasoning

The defendant urged the court to find the property was matrimonial property and sought parental responsibility declarations. The judge held the court is not clothed with such jurisdiction and declined both prayers, confining its decision to the trust and land disputes within its statutory mandate.

p. 3

Legal principles established

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  • A registered proprietor is not relieved of duties or obligations as a trustee by virtue of registration under section 25(2) of the Land Registration Act
  • 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

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.The court declined to grant the declarations in prayers (b) and (e) of the counter-claim for lack of jurisdiction
  3. 3.A permanent injunction issued against the plaintiff restraining himself, his agents, employees, servants, third parties or otherwise from letting out, selling, disposing of or causing Maisonette Number I on Plot Number xxxx Section I Mainland North to be transferred to a third party
  4. 4.A mandatory injunction issued against the plaintiff restraining himself, his agents, servants or otherwise from destroying, demolishing, wasting or causing the Maisonette Number I on Plot Number xxxx Section I Mainland North to be intermeddled with by any third parties
  5. 5.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Land Registration Actsection 25(2)

Cases cited (2)

  • Jubetaibi African Adventure Limited and Anor Vs Christopher Michael Lockey
    (2017) eKLR
  • Rose Naswa Masinde Vs Lilian Nekesa Simiyu
    (2014) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (court declined matrimonial property and parental responsibility declarations for want of jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "FPS v SKM [2020] KEELC 2747 (KLR)", Case Analysis (2020). Civil Case No. 207 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2747/eng@2020-05-12

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