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ELCPartially AllowedBungoma ELC Case (plaint dated 16th December 2013; suit number not stated in judgment)· [2021] KEELC 4488 (KLR)

Abubakar Salim Machiri v Machiri Y.S.M Mohamed [2021] KEELC 4488 (KLR)

Environment and Land Court
4 February 2021
5,889 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~24 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered a brother to transfer 10 acres of family land to the plaintiff, holding that trust claims are not defeated by limitation periods.

What this practically means

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Executive summary

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The plaintiff sued his brother claiming a declaration that the defendant, registered proprietor of land parcel NO BUNGOMA/NAITIRI/290 (31.1 acres), held 10 acres in trust for him, or alternatively a refund of Kshs. 615,000/= contributed towards the purchase. The plaintiff's case was that in or about 1997 the parties agreed to jointly purchase the land from Fred W. Wafula for Kshs. 1,860,000/=; because the defendant's employer, Stanbic Bank, would only lend him Kshs. 1,300,000/=, the plaintiff contributed Kshs. 615,000/= towards the balance in exchange for 10 acres, which were demarcated to him and on which he built structures and cultivated from about 2002 to 2005 before the defendant demolished the structures and denied him access in 2013. The defendant denied any joint purchase, trust or authorization of the payments, pleaded limitation, and raised a counterclaim relating to a Peugeot vehicle. The court first held that a claim founded on trust is not barred by the Limitation of Actions Act, applying Stephens v Stephens. On the evidence, the court found the defendant a dishonest witness whose admissions confirmed the plaintiff's payments, corroborated by the parties' brother and the Senior Chief who arbitrated and wrote to Stanbic Bank in January 2002 confirming the defendant's undertaking to transfer 10 acres. Finding a constructive trust, the court declined the refund alternative, holding the plaintiff bargained for land, not a loan, and granted judgment: a declaration of trust over 10 acres, an order for determination of the trust and execution of transfer documents within 30 days, default execution by the Deputy Registrar, and each party to bear their own costs given the sibling relationship.

Key legal issues

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01

Whether the plaintiff's claim was statute barred

Holding

The claim, being founded on trust, is not defeated by limitation

Reasoning

The defendant pleaded limitation but no preliminary objection was taken. The plaint premised the claim on a trust, and section 20(1)(b) of the Limitation of Actions Act excludes trust claims from limitation periods. Leave to file out of time, if any, was superfluous. The defence on limitation was accordingly dismissed.

p. 3
02

Whether the plaintiff contributed towards the purchase of the suit land

Holding

The court found as a fact that the plaintiff contributed and was entitled to 10 acres

Reasoning

The defendant's testimony was internally contradictory - he denied the plaintiff paid any money yet admitted in cross-examination receiving Kshs. 500,000/= from the plaintiff, and admitted the plaintiff paid off Kshs. 200,000/= of the loan. This established dishonesty. Corroboration came from the parties' brother, the former Chief who arbitrated and wrote to Stanbic Bank on 11th January 2002, and the defendant's former bank colleague. The defendant's silence in the face of the Chief's letter implied acquiescence.

p. 6
03

Whether a trust existed entitling the plaintiff to 10 acres

Holding

A constructive trust was imposed on the defendant as registered proprietor

Reasoning

The agreement between the siblings was verbal. Applying the principle that trusts are not lightly implied, the court nonetheless found cogent, corroborated evidence of contribution, occupation and use of the 10 acres, and the defendant's prior acknowledgement. When the defendant induced the plaintiff to contribute and gave him his account details, he became a trustee; equity will not allow him to resile, so a constructive trust was imposed to prevent unjust enrichment.

p. 6
04

Which remedy to grant - transfer of 10 acres or refund of contribution

Holding

Transfer of the 10 acres rather than refund

Reasoning

The plaintiff's venture was to acquire a 10-acre share, not to lend money. Refund of Kshs. 615,000/= would be inadequate over 20 years later given land appreciation. The court therefore directed transfer of the 10 acres through demarcation, with the Deputy Registrar empowered to execute documents in default.

p. 6

Legal principles established

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  • A claim founded on trust is not barred by the Limitation of Actions Act; no plea of limitation is available against a fiduciary in possession of trust property
  • The party alleging a trust bears the onus of proving it, and the intention of the parties to create a trust must be clearly determined before a trust is implied
  • A constructive trust arises where a person who induced another to contribute to the acquisition of land takes advantage of his position as registered proprietor for his own benefit

Court orders

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  1. 1.A declaration that the defendant holds 10 acres out of the land parcel NO BUNGOMA/NAITIRI/290 in trust for the plaintiff
  2. 2.The trust is determined and the defendant shall, within 30 days from the date of judgment, execute all necessary documents to enable the Land Registrar and Surveyor Bungoma to demarcate and issue a title document in the plaintiff's names for 10 acres out of land parcel NO BUNGOMA/NAITIRI/290
  3. 3.In default, the Deputy Registrar of the Court shall execute all such documents on behalf of the defendant
  4. 4.Each party shall bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 45
  • Limitation of Actions ActCap 22, section 20(1)(b)
  • Limitation Act (1993) [English, as referenced]section 19(1)

Cases cited (3)

  • STEPHENS & 6 OTHERS v STEPHENS & ANOTHER
    1987 eKLR
  • PETER NDUNGU NJENGA v SOPHIA WATIRI NDUNGU
    200 eKLR (as printed)
  • TWALIB HATAYAN & ANOTHER v SAID SAGGAR AHMED AL HEIDY
    2015 eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (suit filed with leave of Court, per the plaintiff's reply to defence); no specific constitutional/statutory article cited

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, "Abubakar Salim Machiri v Machiri Y.S.M Mohamed [2021] KEELC 4488 (KLR)", Case Analysis (2021). Bungoma ELC Case (plaint dated 16th December 2013; suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4488/eng@2021-02-04

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