Presbyterian Foundation & another v Charles Ndungu Waithaka [2021] KEELC 1592 (KLR)
The bottom line
#A Kenyan court ruled that even without written agreements, church land bought jointly must be shared based on each buyer's financial contribution.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendant was a co-purchaser of the suit property with the 2nd plaintiff
The court found, on the testimony of DW2, DW3 and DW4 (church ministers and session clerk) and the receipted contributions of Kshs.340,000/=, that the defendant and the 2nd plaintiff jointly purchased the suit property at the public auctions of 23rd November 2004 and 11th March 2005, with each to receive a portion commensurate with their contribution.
PW1's denial of the defendant's participation was disbelieved against the consistent testimony of three church officials. The defendant's payments were receipted as being towards purchase of the land, distinguishing them from ordinary congregational contributions. The claim that the defendant's wife manipulated church records was unsupported by evidence. An oral partnership agreement deducible from conduct was found to exist.
Whether section 3(3) of the Law of Contract Act barred the defendant's unwritten agreement
Section 3(3) did not defeat the defendant's claim because the defendant was not founding his suit on a contract for the disposition of an interest in land, but on a partnership to purchase at a public auction, to which the proviso relating to auction contracts applies; and in any event a constructive trust arises by operation of law.
The court accepted the defendant's submission that the agreement arose pursuant to a public auction, attracting the proviso to section 3(3), and that nothing in that subsection affects the creation or operation of a resulting, implied or constructive trust. The court relied on Court of Appeal authority that constructive trust applies even where statutory consent requirements render a transaction void.
Whether the 1st plaintiff held part of the suit property in trust for the defendant
Yes - the 1st plaintiff, though solely registered, held the defendant's entitled portion in constructive trust
Because the purchase was joint with a common intention that the defendant receive a share corresponding to his contribution, equity acts on the conscience of the registered proprietor. Reliance was placed on Macharia Mwangi Maina and Willy Kimutai Kitilit, which hold constructive trust applicable notwithstanding the Land Control Act, informed by Article 10(2)(b). The defendant's entitlement was computed pro rata at approximately 4.6 acres, not 7 acres.
Legal principles established
#- A party who advances purchase money towards land registered in another's name acquires an equitable interest, and the registered proprietor holds the corresponding portion in constructive trust
- Equitable doctrines of constructive trust and proprietary estoppel apply notwithstanding the mandatory consent requirements of the Land Control Act, by virtue of Article 10(2)(b) of the Constitution
Court orders
#- 1.That the plaintiffs case is dismissed.
- 2.That the 1st plaintiff holds a portion of 4.6 acres (approx.) in LR No.14242/2 in trust for the defendant.
- 3.The 1st plaintiff is ordered to subdivide LR No.14242/2 and to transfer a portion measuring 4.6 acres (approximately) therefrom to the defendant within 90 days of this judgment.
- 4.Each party to bear their own costs of the suit and the counterclaim.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court (Environment and Land Court Act); Articles 10(2)(b) and 159(2)(e) of the Constitution invoked on equitable principles
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Presbyterian Foundation & another v Charles Ndungu Waithaka [2021] KEELC 1592 (KLR)", Case Analysis (2021). Nakuru ELC (not stated in judgment excerpt; suit commenced by plaint dated 8th April 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1592/eng@2021-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.