Constance Tunda Vuko v Chairman and Secretary, Peace of Elshadai Temple & 2 others [2021] KEELC 3814 (KLR)
The bottom line
#The Malindi Environment and Land Court ruled that donated land held under a valid trust deed must revert to the trustee when the charity's purpose fails, even against a registered owner.
What this practically means
#Executive summary
#Key legal issues
#Capacity of the 1st Defendant to be sued
The 1st Defendant, a society registered under the Societies Act, was rightfully sued through its registered officials; no leave was required.
The Plaint described the 1st Defendant as a registered society sued through its officials. The court perused the Societies Act, Cap 108, and found no requirement for leave before filing such a suit. The 2nd Defendant acknowledged being Chairman, so suing him and the Secretary as registered officials was proper.
Existence and validity of the Deed of Trust
The Deed of Trust dated 2nd October 2006 was valid despite its belated registration in 2013, absent proof of fraud or irregularity.
The Defendants knew of the trust from Malindi HCCC No. 39 of 2010, where their own defence engaged with the trust allegations. Mere denial could not invalidate the registered document; fraud or irregularity had to be proved, and none was pleaded or proved.
Registration subject to trust
PET Children Care holds the suit property under a charitable trust despite being the registered proprietor.
Section 25 of the Land Registration Act protects registered proprietors but subjects their rights to overriding interests, including trusts under Section 28(b). Roberto Arnoldi created a charitable trust by the Deed; the registration of PET Children Care resulted from that trust, not an absolute gift.
Failure of charitable objects and reverter to First Trustee
The charitable objects of the trust have failed, and under Clause 21 the property vests in the Plaintiff as First Trustee to convey to other charitable uses.
The children's home ceased operating after about three years following accusations of defilement against the 2nd Defendant, burning of premises and closure by authorities. Clause 21 of the Deed provided for automatic vesting in the First Trustee upon failure of the objects, and the court applied the cy-pres principle in favour of the donor's charitable wishes.
Res judicata objection
The res judicata objection did not succeed; the suit was not barred by Malindi HCCC No. 39 of 2010.
The court noted the prior suit was by Roberto Arnoldi against the parties, but the Plaintiff's claim here was distinct. The Defendants' contention that the suit was fatally defective was not upheld, and judgment was entered for the Plaintiff as prayed, implying the res judicata plea failed.
Legal principles established
#- The rights of a registered proprietor are subject to overriding interests including trusts, and a proprietor is not relieved of duties as a trustee.
- Trusts are overriding interests under Section 28(b) of the Land Registration Act that bind even where not noted on the register.
- A mere denial of the existence of a registered document cannot invalidate it; the challenger must prove fraud or irregularity.
- Where a charitable purpose fails or becomes impossible, the court may invoke the cy-pres doctrine to apply trust assets to the nearest charitable purpose.
Court orders
#- 1.A declaration that Plot No. Gede/Dabaso/740 is settled property as per the deed of trust dated 2nd October 2006
- 2.A declaration that PET Children Care has failed in its objectives as envisioned by the deed of trust dated 2nd October 2006
- 3.A declaration that Plot No. Gede/Dabaso/740 should revert back to the first trustee of the deed of trust, the Plaintiff
- 4.A permanent injunction restraining the Defendants and those claiming under them from accessing, occupying or interfering with Plot No. Gede/Dabaso/740
- 5.Each party to bear their own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to title/ownership of land (Plot No. Gede/Dabaso/740)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mwakindo (Suing as General Overseer and National Chairman of Evangelistic Saints Assembly Ministry) v Mwambire (Sued on Behalf of Wohemi) & another (Environment and Land Miscellaneous Application E006 of 2026) (Environment and Land) [2026] KEELC 5144 (KLR)[2026] KEELC 5144 (KLR)31 Jul 2026
- Mbiti v Adalja & 3 others[2023] KEELC 21155 (KLR)26 Oct 2023applied
Cite this brief
#Cite this brief
Caselaw, "Constance Tunda Vuko v Chairman and Secretary, Peace of Elshadai Temple & 2 others [2021] KEELC 3814 (KLR)", Case Analysis (2021). Malindi ELC Case (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3814/eng@2021-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.