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ELCPartially AllowedNot stated in the judgment as provided· [2021] KEELC 180 (KLR)

Ben Duke Omwenga v Abigael Bonareri Omwenga & another [2021] KEELC 180 (KLR)

Environment and Land Court
16 December 2021
OMOguttu Mboya
4,011 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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A Kenyan court ruled that property bought with a husband's money, even registered in his wife's name, belongs to him through trust law.

What this practically means

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Executive summary

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The Plaintiff sued the 1st Defendant, his estranged wife, and the 2nd Defendant, their son, claiming three properties: Nairobi/Block 112/63, Nairobi/Block 112/67 and Nairobi/Block 82/2549. He testified that while working abroad, including with the United Nations, he donated a Power of Attorney to the 1st Defendant (dated 4th January 1994, registered 23rd January 2006) and remitted monies to her between 1993 and 2007 to purchase properties on his behalf. Instead of registering the properties in his name, the 1st Defendant registered them in her own name and transferred Nairobi/Block 112/67 to the 2nd Defendant. After revoking the Power of Attorney in September 2012, he sought declarations of trust, rectification and a permanent injunction. The Defendants filed defences but adduced no evidence; their counsel's adjournment applications were declined and the hearing proceeded undefended, leaving the Plaintiff's evidence uncontroverted. The court framed three issues: existence of a trust, its breach, and entitlement to rectification. Relying on Peter Ndungu Njenga v Sophia Watiri Ndungu, Twalib Hatayan and Mwangi Macharia, the court held that the marriage and Power of Attorney created a fiduciary relationship; the 1st Defendant breached it by acting beyond the scope of the Power of Attorney; and as the Plaintiff advanced the purchase monies, the properties are held on resulting trust for him. Judgment was entered for the Plaintiff: registrations cancelled, register rectified to reflect him as sole proprietor, and a permanent injunction issued. Each party to bear own costs, given the parties' close family relationship.

Key legal issues

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01

Existence of trust/fiduciary relationship between husband and donee of Power of Attorney

Holding

A trust and fiduciary relationship arose from the marriage coupled with the registered Power of Attorney

Reasoning

The court found that the marriage between the Plaintiff and the 1st Defendant, combined with the donation and registration of a Power of Attorney authorising her to manage and acquire properties on his behalf, created a relationship of trust and fiduciary obligation. The court reinforced this with the principle from Peter Ndungu Njenga v Sophia Watiri Ndungu that a trust may only be presumed in cases of absolute necessity, but here the intention was evident from the Power of Attorney itself.

p. 4
02

Breach of the trust and Power of Attorney

Holding

The 1st Defendant breached the trust by registering the properties in her own name and transferring one to the 2nd Defendant

Reasoning

The Power of Attorney confined the 1st Defendant to acting in the name of the Plaintiff. Instead she had the purchased properties registered in her own name and transferred Nairobi/Block 112/67 to the 2nd Defendant. Both actions fell outside the scope of the mandate conferred, establishing breach of trust and fiduciary duty.

03

Whether properties are held on trust and Plaintiff entitled to rectification

Holding

The properties are held on resulting trust for the Plaintiff as he advanced the purchase monies; rectification of the register was ordered

Reasoning

The Plaintiff, earning US Dollars 12,000 monthly with the United Nations, remitted the monies used between 1993 and 2007 to acquire the properties. Applying the resulting trust principle that a trust arises in favour of the person who advances the purchase money regardless of registration, and constructive trust principles guarding against unjust enrichment, the court held the registrations were on trust for the Plaintiff and ordered rectification.

p. 5

Legal principles established

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  • A trust may only be presumed by the court in cases of absolute necessity and the intention of the parties to create a trust must be clearly determined before a trust is implied
  • 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
  • A constructive trust automatically arises where a trustee takes advantage of his position for his own benefit
  • Courts must deliver substantive rather than technical justice; equity suffers no wrong without a remedy and detests unjust enrichment

Court orders

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  1. 1.Declaration that the registration of NAIROBI/BLOCK 112/63, NAIROBI/BLOCK 112/67, L.R No. 12948/267 and NAIROBI/BLOCK 82/2549 in the names of the 1st and 2nd Defendants was carried out in breach and violation of the fiduciary duties owed to the Plaintiff by the First Defendant
  2. 2.Declaration that the said properties are registered in the names of the 1st and 2nd Defendants on trust for the Plaintiff
  3. 3.Cancellation of the registrations and rectification of the Register to reflect the Plaintiff as sole registered proprietor of the said properties
  4. 4.Permanent injunction against the Defendants jointly and/or severally from interfering with, trespassing onto or otherwise dealing with the suit properties adversely to the Plaintiff's rights
  5. 5.Each Party to bear Own Costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(a), 159(2)(b), 159(2)(g)
  • Trustee ActDefinition of trust and trustee (implied and constructive trusts)

Cases cited (3)

  • Peter Ndungu Njenga v Sophia Watiri Ndungu
    (2000) eKLR
  • Twalib Hatayan Twalib Hatayan & Anor vs. Said Saggar Ahmed Al-Heidy & Others
    [2015] eKLR
  • Mwangi Macharia & 87 Others v Davidson Mwangi
    (2016) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over suits relating to land

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Ben Duke Omwenga v Abigael Bonareri Omwenga & another [2021] KEELC 180 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/180/eng@2021-12-16

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