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ELCPartially AllowedNot stated in the judgment as provided· [2022] KEELC 2416 (KLR)

Kihiu & 3 others v Muungano wa Wanavijiji Akiba Mashinani Trust; Waweru & 4 others (Interested Parties) (Environment & Land Case 1112 of 2013) [2022] KEELC 2416 (KLR)

Environment and Land Court
5 May 2022
8,671 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~35 min to read original · ~4 min brief

The bottom line

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Nairobi court ordered Akiba Mashinani Trust to unconditionally transfer two Mukuru land parcels to community trustees within 30 days, but dismissed their interest claim.

What this practically means

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Executive summary

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The Plaintiffs, officials of Mukuru Makao Bora Trust, sued on behalf of the Trust and its 2,221 members seeking an order compelling the Defendant (Akiba Mashinani Trust) to transfer two Nairobi parcels, L.R 7109/88 and L.R 7109/89, and to account for and pay interest earned on a fixed deposit of Kshs 27,212,450. The Group (Sisal Settlement Savings Self Help Group) had engaged the Defendant to purchase the land for Kshs 81,000,000 using member contributions and a Kshs 55,000,000 Eco Bank mortgage, which the members fully repaid; the title was discharged in February 2013 but the Defendant set conditions - audits, beneficiary lists and meetings - before transfer. Interested Parties, a breakaway faction of zone representatives, opposed transfer. The court held the Plaintiffs had locus: the unincorporated Trust could only sue through its trustees, and the Board had unanimously authorized the suit on 16th August 2013; the 2014 joinder Ruling had not decided locus, so the point was not res judicata. On the merits, the Defendant failed to prove the alleged outstanding Kshs 23-29 million: its accounts were unaudited and inconsistent, and its failure to produce the mortgage accounts attracted an adverse inference. Having been paid and holding the land in trust for the beneficiaries, the Defendant had no reasonable cause to refuse unconditional transfer, and its internal-dispute and disenfranchisement concerns fell outside the suit. The claim for fixed-deposit interest failed for want of proof. Judgment was entered for the Plaintiffs: unconditional transfer of both parcels within 30 days, to hold in trust for Trust members, with costs of the suit to the Defendant.

Key legal issues

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01

Locus standi of officials of an unincorporated trust to sue

Holding

The Plaintiffs, as executive officers of the Trust duly authorized by a resolution of the Board of Trustees, had locus to institute the suit; the claim that locus was res judicata was rejected, but capacity was upheld on the merits.

Reasoning

The Trust, though registered under the Registration of Documents Act, was not incorporated under the Trustees (Perpetual Succession) Act and could only act through its trustees. Clause 9 of the Trust Deed vested day-to-day management in executive officers, and the Board of Trustees meeting of 16th August 2013 unanimously resolved to file the suit against the Defendant. The prior Ruling of 14th November 2014 had not determined the locus question, so it was not res judicata.

02

Whether the Plaintiffs discharged their obligations under the informal purchase agreement

Holding

Yes. The Defendant failed to prove the alleged outstanding debt of about Kshs 23-29 million; its accounts were unaudited, inconsistent, and the mortgage accounts were never produced, attracting an adverse inference.

Reasoning

The Defendant bore the burden of proving the sums allegedly owed. Its own auditor conceded he lacked evidence for stamp duty, perimeter wall, the alleged Kshs 1.5 million loan and the deposit of Kshs 72 million; DW1 admitted the amounts could not be ascertained for want of audited accounts. Failure to tender the mortgage account justified an adverse inference, and the court found the Plaintiffs had paid the sums due.

p. 14
03

Whether the Defendant could impose conditions precedent to transfer of the suit properties

Holding

No. Having purchased the properties in trust for the Group (now the Trust) and been fully paid, the Defendant had no reasonable or lawful excuse to refuse transfer or dictate how the Trust manages the properties.

Reasoning

The Defendant admitted holding the title in trust for the beneficiaries and DW3 conceded the Defendant was not entitled to interfere with the Trust's management. Internal disputes within the Trust over beneficiary lists and unpaid members were not the subject of the suit and could be resolved by the Trust's board after transfer. Any voting right the Defendant holds is exercisable only within the Trust's constitution.

p. 15
04

Claim for interest earned on the fixed deposit of Kshs 27,212,450

Holding

Claim not proved; the Plaintiffs neither produced the fixed deposit account statement nor summoned a bank official.

Reasoning

Although the Plaintiffs alleged interest of about Kshs 10 million, no documentary or oral evidence from the bank established the interest earned. The evidential burden lay on the Plaintiffs, and having failed to discharge it on a balance of probabilities, prayer (b) failed.

Legal principles established

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  • An unincorporated trust has no separate legal existence from its trustees and can only institute a suit through its trustees and/or recognized officials.
  • Where a party fails to produce crucial documents in its possession without reasonable explanation, the court may draw an adverse inference that the documents would be prejudicial to it.
  • A party whose obligations under an agreement are proved on a balance of probabilities cannot have the counterparty impose unilateral conditions precedent to performance.

Court orders

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  1. 1.The Defendant be and is hereby ordered to unconditionally transfer L.R No. 7109/88 and L.R No. 7109/89, Nairobi to the Plaintiffs to hold them in trust for the members of Mukuru Makao Bora Trust within 30 days.
  2. 2.The Defendant to pay the costs of the suit.

Authorities

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Legislation

  • Trustees (Perpetual Succession) Actsection 3(1)
  • Registration of Documents ActNot specified
  • Evidence Actsections 107, 109 and 112

Cases cited (16)

  • Juletabi African Adventure Limited & Anor vs Christopher Michael Lockley
    [2017] eKLR
  • Charles K. Kandie vs Mary Kimani Sang
    [2017] eKLR
  • Twalib Hatayan Twalib Hatayan & Another vs Said Saggar Ahmed Al-Heidy & Others
    [2015] eKLR
  • Dull Chand vs Mahabir Pershad Trllok Chand
    AIR 1984 Delhi 144, 25 (1984)
  • Atmaram Ranchhodbhal vs Gulamhuseln Gulam Mohlyaddln & Another
  • Kipsiwo Community Self Help Group vs Attorney General And 6 Others
    [2013] eKLR
  • Anderson Mole Munyanya & 3 others vs Morris Sulubu Hare
    [2017] eKLR
  • Apex Finance International Limited & another vs Kenya Anti-Corruption Commission
    [2012] eKLR
  • Goodwill & Trust Investment Ltd & Another vs Will & Bush Ltd
    SC.266/2005 (25.03.2011)
  • Alfred Njau vs City Council of Nairobi
    [1983] eKLR 625
  • Erick Lumosi Asiligwa & another vs Peter Felix Baumartner
    (2011) eKLR
  • Mumbi M'Nabea vs David M.Wachira
    [2016] eKLR
  • Raila Amolo Odinga & Another vs IEBC & 2 Others
    Presidential Election Petition No. 1 of 2017 (2017) eKLR
  • Stanley Mombo Amuti vs Kenya Anti-Corruption Commission
    [2019] eKLR
  • Bukenya and Others vs Uganda
    [1972] EA 549
  • Mann Holdings Pte Ltd and another vs Ung Yoke Hong
    [2018] SGHC 69
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcels L.R 7109/88 and L.R 7109/89, Nairobi

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Kihiu & 3 others v Muungano wa Wanavijiji Akiba Mashinani Trust; Waweru & 4 others (Interested Parties) (Environment & Land Case 1112 of 2013) [2022] KEELC 2416 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2416/eng@2022-05-05

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