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ELCDismissedNot stated in the judgment (plaint dated 13/7/2017)· [2020] KEELC 3858 (KLR)

Mary Anne Obondo v Moses Namusasi Chikati [2020] KEELC 3858 (KLR)

Environment and Land Court
20 January 2020
4,008 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was an original suit before the Environment and Land Court at Nairobi, heard inter partes after an earlier ex parte judgment of 27/11/2018 was set aside on 18/6/2019. The plaintiff, elder sister of the defendant, sought a declaration that the defendant holds Title Number Dagoretti/Riruta/2533 in trust for her, an order for transfer of the property, mesne profits and costs. She claimed she purchased the property in 2003 for Kshs 2,000,000 and, being posted abroad, caused the title to be registered in the defendant's name to hold in trust for her. The defendant denied the trust, contending he bought the property himself; the plaintiff paid Kshs 1,900,000 on his behalf as a loan which he fully repaid between 2003 and 2008, whereafter the vendors transferred the property to him. The plaintiff called the vendor (PW2), who supported her account; the defendant relied on the sale agreement dated 15/5/2008 to which the plaintiff appended her signed consent, and her email of 2/2/2008. The court framed the key issue as whether the defendant holds the property in trust for the plaintiff. Reviewing the law on resulting trusts, it held that common intention must first be discerned from written agreements. The 2008 agreement expressly recorded the 2003 payment as made on behalf of the defendant, and the email showed the plaintiff intended to cede her position as purchaser. The plaintiff had opportunities to record a trust in the agreement or transfer but did not. The Rose Naswa Masinde authority was distinguished. The claim regarding Ojiambo & Company Advocates' alleged conflict was declined as unpleaded and unevidenced. The suit was dismissed in its entirety, with costs to the plaintiff.

Key legal issues

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01

Whether a resulting trust arose in favour of the plaintiff over the suit property

Holding

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.

Reasoning

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.

p. 4
02

Whether Rose Naswa Masinde v Lilian Nekesa Simiyu Mukopi applied to the facts

Holding

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.

Reasoning

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.

p. 4
03

Whether the alleged conflict of interest of Ojiambo & Company Advocates fell for determination

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The plaintiff's suit is dismissed in its entirety
  2. 2.The plaintiff shall bear costs of the suit

Authorities

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Legislation

  • Law of Contract ActSection 3
  • Land Registration ActSection 25
  • Advocates (Practice) RulesRule 9

Cases cited (1)

  • Rose Naswa Masinde v Lilian Nekesa Simiyu Mukopi
    [2014] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute relating to Land Title Number Dagoretti/Riruta/2533

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, "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.