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ELCDismissedEnvironment & Land Case 24 of 2019· [2023] KEELC 17292 (KLR)

NJB v JMM

Environment and Land Court of Kenya
10 May 2023
7,808 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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A foreigner who financed Kenyan land registered in joint names lost her trust claim and must split the properties equally.

What this practically means

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Executive summary

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NJB, a British citizen, sued JMM, her former romantic partner, seeking a permanent injunction, declarations that her interest in Kwale/Ukunda/5532 and 915 was held in trust for her solely, Kshs 1,700,000 being sale proceeds of motor vehicle KCP 221D, and a mandatory injunction to deliver up title deeds. JMM filed a defence and counterclaim asserting sole beneficial ownership of the properties and that the vehicle was a gift. Both parties testified; the plaintiff produced extensive remittance and banking evidence showing she financed the purchase and development, while the defendant relied on sale agreements, petty cash vouchers and a valuation report. The court framed four issues: jurisdiction, ownership of the properties and vehicle, existence of a trust, and costs. It held it had jurisdiction over all issues, the vehicle claim being intertwined with the predominant land dispute. It found the plaintiff was the clear financier but failed to prove fraud, since the defendant's statement that a foreigner could not own land solely reflected Article 65 of the Constitution. No document evidenced an intention to create a trust, and freehold land could not in law be held in trust for a non-citizen. The defendant's contribution was not nil, so his counterclaim also failed. The titles, in joint names without indicated shares, attracted the presumption of tenancy in common in equal shares under section 91(2) of the Land Registration Act. Both the suit and counterclaim were dismissed, each party bearing own costs, with directions for valuation, buy-out or sale and equal division of the properties.

Key legal issues

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01

Jurisdiction over the motor vehicle claim in a land court

Holding

The court assumed jurisdiction over the vehicle claim because it is connected and intertwined with the predominant land dispute.

Reasoning

Ownership of the suit properties falls squarely within Article 162(2)(b) and section 13 of the ELC Act. The vehicle claim is not a land matter but is intertwined with the land dispute; leaving it undetermined would force multiplicity of litigation and extra costs, so the court dealt with all issues in both claims.

p. 9
02

Whether the plaintiff proved fraud in the registration of the properties in joint names

Holding

Fraud was not proved; the defendant's statement that a foreigner could not own land solely was the true legal position under Article 65, not a misrepresentation.

Reasoning

Fraud must be pleaded and proved above a balance of probabilities. The plaintiff conceded the defendant told her a foreigner could not purchase land alone, which was correct under Article 65. Knowing this, she still sent money and proceeded with the transactions, so no deceit or misrepresentation was established.

p. 12
03

Whether a resulting or constructive trust existed in favour of the plaintiff

Holding

No trust was established; the plaintiff produced no document showing intention to create a trust, and freehold land cannot in law be held in trust for a non-citizen.

Reasoning

Although the plaintiff was the clear financier of the purchase and development, she produced no document evidencing an intention to create a trust. Further, Article 65(3) provides that property held in trust is held by a citizen only if all beneficial interests are held by citizens, making a trust over freehold land for a non-citizen legally impossible.

p. 12
04

Ownership of the suit properties as between the parties

Holding

The properties are co-owned by both parties as the titles indicate, held as tenants in common in equal shares under section 91(2) of the Land Registration Act.

Reasoning

Both parties failed to prove exclusive ownership to the required standard. The plaintiff was the financier but the defendant's contribution was not nil. Titles in joint names without indicated shares attract the statutory presumption of equal shares as tenants in common.

p. 13
05

Entitlement to the motor vehicle and its sale proceeds

Holding

The plaintiff's claim to the vehicle's sale proceeds failed for lack of documentary evidence of ownership.

Reasoning

Having failed to establish fraud and a trust in her favour, the plaintiff had no documentary evidence suggesting she owned the vehicle, so she had no basis to claim the Kshs 1,700,000 sale proceeds.

p. 13

Legal principles established

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  • Where co-proprietors' shares are not indicated on the title, they are presumed to hold as tenants in common in equal shares under section 91(2) of the Land Registration Act.
  • A non-citizen cannot own freehold land in Kenya and freehold titled land cannot be held in trust for a non-citizen, per Article 65 of the Constitution.
  • Allegations of fraud must be strictly proved to a standard above a balance of probabilities but not beyond reasonable doubt.
  • A resulting trust automatically arises in favour of the person who advances the purchase money, whether or not the property is registered in their name.

Court orders

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  1. 1.Both the plaintiff's suit and defendant's counterclaim are dismissed.
  2. 2.Each party to bear her/his own costs in both the main suit and counterclaim.
  3. 3.Parties to have the two suit properties valued by a licensed practitioner within 30 days, sharing valuation fees equally; thereafter any party may buy the other's half (50%) share within 30 days.
  4. 4.If no party buys the other's half share, parties to engage a real estate agent to sell the suit properties and share the proceeds equally, with the agent's fees shared equally.

Authorities

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Legislation

  • Constitution of KenyaArticle 162
  • Constitution of KenyaArticle 65
  • Constitution of KenyaArticles 42, 69 and 70
  • Environment and Land Court Act No. 19 of 2011Section 13
  • Land Registration Act No. 3 of 2012Section 26
  • Land Registration Act No. 3 of 2012Section 91(2)
  • Trustee Act Cap 167 Laws of KenyaSection 2
  • Law of Contract Act Cap 23 Laws of KenyaSection 3
  • Civil Procedure Act Chapter 21 Laws of KenyaSection 27(1)
  • Evidence ActSections 107 to 109

Cases cited (15)

  • Charles K Kandie VS Mary Kimoi Sang
    [2007] eKLR

    Definition of fraud and the standard of proof required

  • Hamm Helmut VS Farida Riziki
    [2011] eKLR
  • Twalib Hatayan Twalib Hatayan & Another vs. Said Saggar Ahmed Al-Heidy & Others
    [2015] eKLR

    Exposition of the law on constructive and resulting trusts

  • BBAM V MB
    [2019] eKLR
  • Juletabi African Adventure Limited & Anor VS Christopher Michael Lockley
    Civil Appeal No. 75 of 2016
  • Gichuki VS Gichuki
    (182) KLR 285
  • Mbotu & 8 others VS Waitimu & 11 other
    (1986) KLR 171
  • Erick Juma & 2 others V Fredrick Gacheru & Another
    [2016] eKLR

    Standard of proving fraud, deceit, misrepresentation and illegality

  • Rosemary Wanjiku Murithi V George Maina Ndinwa
    NYR Civil Appeal No 2014 [2014] eKLR
  • Central Bank Kenya LTD V Trust Bank Ltd & 4 others
    NAI Civil Appeal No. 215 of 1996 (UR)
  • Piccininni VS Hajaus
    180 Conm 369 [1989]

    Gifts given on condition to marry are recoverable

  • Captain Ingo Bernd Rauer VS Teresia Murugi & Another
    [2019] Eklr
  • Githinga Kibutha vs Caroline Nduku
    ELCA No 16 of 2007

    Definition of fraud under the Land Registration Act

  • Denis Noel Mukhulo Ochwada & Another vs Elizabeth Murungari Njoroge & Another
    [2018] eKLR

    Standard of proof of fraud, citing R.G. Patel vs Lalji Makanji

  • R. G. Patel vs Lalji Makanji

    Allegations of fraud must be strictly proved; something more than a mere balance of probabilities is required

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act No. 19 of 2011

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, "NJB v JMM", Case Analysis (2023). Environment & Land Case 24 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17292/eng@2023-05-10

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