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ELCDismissedEnvironment & Land Case 1 of 2019· [2023] KEELC 16719 (KLR)

Yunis & 2 others (Suing as trustee of Narok Muslim Welfare Society) v Yusuf & 2 others (Sued as directors of Bilal School)

Environment and Land Court
29 March 2023
3,134 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court let Bilal School stay on disputed Narok land until 2027, ruling that a signed 2009 letter meant the school was no trespasser.

What this practically means

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Executive summary

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The plaintiffs, suing as trustees of Narok Muslim Welfare Society, claimed Plot Number 143 Block 11 Narok was allocated to the society by the County Government of Narok and that the defendants, directors of Bilal School, entered and erected school structures in 2009 on the basis of a letter allegedly authored by society officials without authority. They sought eviction and an injunction. The defendants denied trespass, asserting they entered under a December 9, 2009 agreement signed by society officials, invested heavily (allegedly Kshs 17 million), and counter-claimed for compensation, general damages and costs. The court framed eight issues including locus standi, lawful occupation, constructive trust, promissory estoppel and the counter-claim. It held the plaintiffs had locus standi because the defendants admitted their trustee status, estopping denial. It found the defendants entered with written authority and were not trespassers. Applying Yaxley v Gotts and Twalib Hatayan, it held the December 9, 2009 letter gave rise to a constructive trust binding the plaintiffs, since one of their officials signed it. The court found the defendants entitled to run the school for 18 years from 2015, i.e. until 2027. The upshot was dismissal of the plaintiffs' suit with no orders as to costs, the defendants being allowed to continue the school business, and dismissal of the counter-claim. The judgment leaves unexplained the basis of the 18-year entitlement and gives no reasons for dismissing the counter-claim.

Key legal issues

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01

Locus standi of the plaintiffs as trustees

Holding

Plaintiffs have locus standi because the defendants admitted they are trustees, estopping the defendants from denying it

Reasoning

Although the plaintiffs did not produce evidence of their appointment as trustees of Narok Muslim Welfare Society, the defendants admitted the averment in the pleadings. Under Order 13 rule 2 of the Civil Procedure Rules, judgment on admissions may be entered, and the defendants were estopped from denying the plaintiffs' status as trustees.

02

Whether the defendants are in lawful occupation

Holding

Yes - the plaintiffs allowed the defendants to enter and construct a school, so they are not trespassers

Reasoning

The court found the plaintiffs permitted the defendants to enter the land and construct a school that operates to date. Relying on section 3 of the Trespass Act, which places the burden of proving consent of the occupier on the person entering, the court held the written authority of December 9, 2009 established consent, negating trespass.

03

Whether the December 9, 2009 letter created a trust

Holding

Yes - a constructive trust arises from the letter authorising entry and construction

Reasoning

Though there was no formal contract complying with section 3 of the Law of Contract Act, the letter authorised entry and construction. Following Yaxley v Gotts and Twalib Hatayan, the court held equity imposes a constructive trust where circumstances demand the legal owner be treated as trustee, making the informal arrangement enforceable.

p. 6
04

Promissory estoppel and duration of occupation

Holding

Plaintiffs are estopped from denying the letter; defendants entitled to run the school for 18 years from 2015, i.e. until 2027

Reasoning

One of the plaintiffs' officials signed the December 9, 2009 letter, binding the plaintiffs. The court accepted the defendants' submission that construction concluded in 2015 and that a 12-year period would lapse in 2027, and found the defendants entitled to run the school for 18 years from 2015, i.e. until 2027.

05

Defendants' counter-claim for Kshs 17,000,000

Holding

Counter-claim dismissed

Reasoning

The counter-claim for loss of business, compensation of Kshs 17,000,000, general damages, valuation costs and interest was dismissed in the upshot, but the judgment gives no detailed reasoning for the dismissal of the counter-claim.

p. 7

Legal principles established

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  • A party who admits facts on the pleadings is estopped from denying them, per Order 13 rule 2 on judgment on admissions
  • An oral or informal agreement otherwise unenforceable may be enforced on the basis of a constructive trust
  • Entry onto land with written authority of the occupier does not constitute trespass

Court orders

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  1. 1.The plaintiffs' suit is dismissed with no orders as to costs
  2. 2.The defendants are allowed to continue with the business of a school
  3. 3.The defendants are entitled to run the school until 2027 (18 years from 2015)
  4. 4.The defendants' counter-claim is dismissed

Authorities

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Legislation

  • Civil Procedure RulesOrder 13 rule 2
  • Trespass Actsection 3
  • Law of Contract Actsection 3(3)
  • Trustee Act

Cases cited (2)

  • Yaxley -vs- Gotts
    (2000) Ch 162

    Oral agreement void under statute still enforceable on basis of constructive trust

  • Twalib Hatayan & another -vs- Said Saggar Ahmed Al-Heidy & 5 others
    (2015) eKLR

    Expounding constructive and resulting trusts and when equity imposes a trust

Jurisdiction invoked
Territorial jurisdiction - the suit parcel of land is within the local limits of the Environment and Land Court at Nakuru

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, "Yunis & 2 others (Suing as trustee of Narok Muslim Welfare Society) v Yusuf & 2 others (Sued as directors of Bilal School)", Case Analysis (2023). Environment & Land Case 1 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16719/eng@2023-03-29

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