NJB v JMM
The bottom line
#A foreigner who financed Kenyan land registered in joint names lost her trust claim and must split the properties equally.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over the motor vehicle claim in a land court
The court assumed jurisdiction over the vehicle claim because it is connected and intertwined with the predominant land dispute.
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.
Whether the plaintiff proved fraud in the registration of the properties in joint names
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.
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.
Whether a resulting or constructive trust existed in favour of the plaintiff
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.
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.
Ownership of the suit properties as between the parties
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.
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.
Entitlement to the motor vehicle and its sale proceeds
The plaintiff's claim to the vehicle's sale proceeds failed for lack of documentary evidence of ownership.
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.
Legal principles established
#- 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
#- 1.Both the plaintiff's suit and defendant's counterclaim are dismissed.
- 2.Each party to bear her/his own costs in both the main suit and counterclaim.
- 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.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.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.