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ELCAllowedMalindi ELC Case (number not stated in judgment)· [2021] KEELC 3814 (KLR)

Constance Tunda Vuko v Chairman and Secretary, Peace of Elshadai Temple & 2 others [2021] KEELC 3814 (KLR)

Environment and Land Court
23 March 2021
6,338 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Plaintiff sued the 1st Defendant (a registered church ministry) and its Chairman, the 2nd Defendant, seeking declarations that Plot No. Gede/Dabaso/740 was settled property under a Deed of Trust dated 2nd October 2006, that PET Children Care had failed in its objectives, that the property should revert to her as First Trustee, and a permanent injunction. The property had been donated by Italian benefactor Roberto Arnoldi and registered in the name of PET Children Care in 2007. The Defendants denied the existence of the Deed of Trust, asserting the land was an outright gift to the church, and pleaded res judicata arising from Malindi HCCC No. 39 of 2010, a suit by Roberto Arnoldi. The court held the 1st Defendant was properly sued through its registered officials under the Societies Act. It found the Deed of Trust valid despite belated registration, since no fraud or irregularity was proved. Relying on Sections 25 and 28 of the Land Registration Act, it held that trusts are overriding interests, so PET Children Care holds the property under a charitable trust and not absolutely. The orphanage ceased operations after about three years amid defilement allegations against the 2nd Defendant and the closure of the home. Applying the cy-pres doctrine and Clause 21 of the Deed, the court held the property must revert to the Plaintiff as First Trustee to convey to other charitable uses. Judgment was entered for the Plaintiff as prayed, with each party bearing their own costs.

Key legal issues

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01

Capacity of the 1st Defendant to be sued

Holding

The 1st Defendant, a society registered under the Societies Act, was rightfully sued through its registered officials; no leave was required.

Reasoning

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.

p. 6
02

Existence and validity of the Deed of Trust

Holding

The Deed of Trust dated 2nd October 2006 was valid despite its belated registration in 2013, absent proof of fraud or irregularity.

Reasoning

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.

p. 9
03

Registration subject to trust

Holding

PET Children Care holds the suit property under a charitable trust despite being the registered proprietor.

Reasoning

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.

p. 9
04

Failure of charitable objects and reverter to First Trustee

Holding

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.

Reasoning

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.

p. 10
05

Res judicata objection

Holding

The res judicata objection did not succeed; the suit was not barred by Malindi HCCC No. 39 of 2010.

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 1.A declaration that Plot No. Gede/Dabaso/740 is settled property as per the deed of trust dated 2nd October 2006
  2. 2.A declaration that PET Children Care has failed in its objectives as envisioned by the deed of trust dated 2nd October 2006
  3. 3.A declaration that Plot No. Gede/Dabaso/740 should revert back to the first trustee of the deed of trust, the Plaintiff
  4. 4.A permanent injunction restraining the Defendants and those claiming under them from accessing, occupying or interfering with Plot No. Gede/Dabaso/740
  5. 5.Each party to bear their own costs

Authorities

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Legislation

  • Societies ActCap 108
  • Land Registration ActSection 25
  • Land Registration ActSection 28
  • Registration of Documents Act(registration of the deed of trust)

Cases cited (1)

  • William Charles Fryda –vs– Assumption Sisters of Nairobi Registered Trustees & Another
    (2017) eKLR
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

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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, "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.