Mary Anne Obondo v Moses Namusasi Chikati [2020] KEELC 3858 (KLR)
The bottom line
#The Environment and Land Court dismissed a sister's claim that her brother held her Nairobi land in trust because she signed documents saying otherwise.
What this practically means
#Executive summary
#Key legal issues
#Whether a resulting trust arose in favour of the plaintiff over the suit property
No resulting trust was established. Although the plaintiff paid the purchase price in 2003, her own subsequent conduct - including an email showing she intended to cede her position as purchaser to the defendant and her signed consent to the 2008 sale agreement stating the 2003 payment was made on the defendant's behalf - negatived any common intention that the defendant hold the property in trust.
The court outlined the doctrine of resulting trust, emphasising common intention as its essential feature. It then examined the documentary evidence: the plaintiff's email of 2/2/2008 showed an arrangement whereby the defendant was to pay her and she would cede her position of purchaser, and the 2008 sale agreement expressly recorded the 2003 payment as made on behalf of the defendant with the plaintiff's signed consent. The plaintiff had every opportunity to record a trust in the agreement or transfer instrument but did not. Blood relationship alone could not found a trust.
Whether Rose Naswa Masinde v Lilian Nekesa Simiyu Mukopi applied to the facts
Distinguished. The facts in that case involved no written agreement expressing the parties' common intention, unlike this suit where the plaintiff signed an agreement stating the payment was made on the defendant's behalf.
Counsel for the plaintiff relied on the Munyao J decision. The court concurred with that decision's findings but held the facts were materially different: in that case there was no written agreement expressing the common intention, whereas here the plaintiff in 2008 appended her signature to an agreement recording that her 2003 payment was made on the defendant's behalf.
Whether the alleged conflict of interest of Ojiambo & Company Advocates fell for determination
Declined. The issue did not arise from the pleadings, was never the subject of an objection or application, and was raised only in written submissions without evidential support.
The court noted the plaintiff framed the firm's alleged conflict as an issue but had never objected to the firm acting for the defendant during the trial, filed no application for disqualification, and supported the allegations with no evidence. An issue raised for the first time in submissions, unsupported by evidence, cannot be admitted for determination.
Legal principles established
#- The common intention of parties to a putative trust is to be discerned primarily from written agreements or memoranda, and oral (parole) evidence is only resorted to where the written record is unclear
Court orders
#- 1.The plaintiff's suit is dismissed in its entirety
- 2.The plaintiff shall bear costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute relating to Land Title Number Dagoretti/Riruta/2533
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Anne Obondo v Moses Namusasi Chikati [2020] KEELC 3858 (KLR)", Case Analysis (2020). Not stated in the judgment (plaint dated 13/7/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3858/eng@2020-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.