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ELCPartially AllowedEnvironment & Land Case 125 of 2021· [2023] KEELC 17968 (KLR)

Aniello Storelli v Damaris Mwongeli Mbindyo & Another

Environment and Land Court of Kenya
5 June 2023
7,987 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that property bought with someone else's money can be reclaimed through a trust, even if registered in another person's name.

What this practically means

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Executive summary

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The plaintiff, an Italian citizen, sued the 1st defendant, his former long-term cohabitee, and Stow City Limited, claiming he financed the purchase of fourteen properties registered in their names because he was told he could not own land in Kenya as a foreigner, and sought declarations of ownership, resulting/constructive trust, transfer orders and a permanent injunction. The 1st defendant denied any trust, asserting she purchased the properties with her own funds from profits and salary. The court framed three issues: whether a trust was presumed, entitlement to the prayers, and costs. Applying James Archer, Twalib Hatayan and Juletabi, it found no express trust but held that a resulting trust arose over Kwale/Waa/932 and 1206, the plaintiff's payment of the Kshs 1.6 million purchase price being corroborated by the vendor PW2 and admitted by the 1st defendant. From the parties' conduct - over ten years of cohabitation, the plaintiff's detrimental reliance on advice that he could not hold land, and his involvement in the sale of plot 1119 - the court inferred a constructive trust over the undeveloped and partly developed Diani plots (1103, 1105, 1106, 1107, 1120). It declined to disturb the status quo on the charged plot 1122, the rental plot 1121, and plots sold to third parties, and directed that plot 1111 be held in trust for the two children. Transfer orders with a 90-day deadline and Deputy Registrar fallback were issued; there were no orders as to costs.

Key legal issues

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01

Whether an express trust existed over the suit properties

Holding

No express trust; the defendants appeared as registered proprietors, not trustees, and the plaintiff was not endorsed on any title

Reasoning

The court applied the definition of trust from the Court of Appeal in James Archer and Twalib Hatayan, noting an express trust requires clearly identified property, purpose and beneficiaries. Here the defendants appeared separately as registered proprietors but not as trustees, the plaintiff was not endorsed on any title, and no evidence of an express trust was presented.

p. 7
02

Whether a resulting trust arose over Kwale/Waa/932 and 1206

Holding

Yes; the plaintiff proved on a balance of probabilities that he financed the purchase and intended the properties be held in trust for him

Reasoning

The vendor PW2 confirmed receipt of the full purchase price from the plaintiff by cheques, and DW1 admitted in evidence in chief that the plaintiff paid the postdated cheques. The plaintiff consistently testified he was told he could not own land as a foreigner and acted to his detriment. The court also relied on Justice Omollo's ruling of 12/6/2015 and the plaintiff's possession per the site visit report.

p. 9
03

Whether a constructive trust arose over the Diani/Stow City properties

Holding

Yes, over the undeveloped and partly developed plots (1103, 1105, 1106, 1107, 1120), inferred from the parties' conduct and the plaintiff's detrimental reliance

Reasoning

The court inferred common intention from conduct: the plaintiff cohabited with the defendant for over 10 years, was misled into believing he could not register property as a foreigner, financed the Stow City purchase, and was involved in the sale of plot 1119 to his cousin with the balance remitted through him. The court held it inequitable for the 1st defendant to assert full beneficial ownership.

p. 13
04

Whether the plaintiff's unproduced documents had evidentiary value

Holding

The court nonetheless found the plaintiff's payment of Kshs 1.3 million proved on a balance of probabilities, aided by an affidavit of Mr. Tonello and the vendor's death precluding production

Reasoning

Although the plaintiff's listed documents were never produced and thus lacked formal probative value, the court noted Giovani Dal Din had died about one and a half years before the hearing, which was not controverted, and the Tonello affidavit corroborated payment. The court found no reason to disbelieve the plaintiff paid the money.

p. 12
05

Whether the court could grant relief notwithstanding indefeasibility of first registration under section 25(1) of the Land Registration Act

Holding

Yes; overriding interests need not be noted in the register and the court's remedial jurisdiction under section 13(7) of the ELC Act permits restitution and declarations

Reasoning

Counsel for the defendant argued first registration was indefeasible absent fraud. The court responded by invoking overriding interests and section 13(7) of the Environment and Land Court Act 2011, which empowers the court to make any order and grant any relief it deems fit and just, including restitution, declarations and injunctions.

p. 14

Legal principles established

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  • A resulting trust arises in favour of the person who advances the purchase money, whether or not the property is registered in his name or that of another
  • The two requirements for a resulting trust are intention and contribution to the purchase contemporaneous with the taking of legal title
  • Where there is no evidence of an agreement to share, the court may rely on the conduct of the parties to infer a common intention to share property beneficially
  • A constructive trust is imposed by law whenever justice and good conscience require it

Court orders

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  1. 1.Declaration that Kwale/Waa/932 and Kwale/Waa/1206 were held in trust by the 1st defendant as trustee for the plaintiff
  2. 2.Order directing the 1st Defendant to transfer Plots Kwale/Waa/932 and Kwale/Waa/1206 to the plaintiff within 90 days, failing which the Deputy Registrar of the Environment and Land Court Kwale to sign the transfer forms
  3. 3.Declaration that Kwale/Diani 1103, 1105, 1106, 1107 and 1120 were held in trust by Stow City Limited as constructive trustee for the plaintiff
  4. 4.Order directing the 2nd Defendant to transfer Plots Kwale/Diani 1103, 1105, 1106, 1107 and 1120 to the plaintiff within 90 days, failing which the Deputy Registrar to sign the transfer forms
  5. 5.Property Kwale/Diani 1111 to be held in trust for the two children Storelli Nicola Antonio and Storelli Nicholas Kamau, with rent deposited in a fixed deposit account in the joint names of the plaintiff and 1st defendant until they attain majority
  6. 6.No orders as to costs

Authorities

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Legislation

  • Civil Procedure Actinherent powers (as invoked by plaintiff's counsel)
  • Civil Procedure RulesOrder 10 rule 9
  • Land Registration Actsection 25(1)
  • Land Actsection 38
  • Environment and Land Court Actsection 13(7)
  • Constitution of Kenya 2010Article 159(2)

Cases cited (12)

  • James Archer & Ano v Inger Christine Archer & 2 Others
    (2023) KECA 298 (KLR)

    Definition of a trust and the types of trusts relating to land; requirements for a resulting trust

  • Twalib Hatayan & Another v Said Saggar Ahmed Al-Heidy & 5 Others
    [2015] eKLR

    Trusts created expressly or by operation of law; categories of constructive and resulting trusts

  • Zipporah Wanjiru Mwangi v Zipporah Wanjiru Njoroge
    (2017) eKLR

    Courts will only imply a trust to give effect to clearly determined intentions of the parties

  • Mbothu & 8 Others v Waitimu & 11 Others
    (1986) KLR 171

    Courts imply trusts only to give effect to parties' intentions which must be clearly determined

  • Pettit v Pettit
    (1970) AC 777

    Intention and contribution must be contemporaneous with taking legal title

  • Gissing v Gissing
    (1971) AC 886

    Guidelines for establishing constructive trust; common intention inferred from conduct

  • Juletabi African Adventure Limited & another v Christopher Michael Lockley
    [2017] eKLR

    Resulting trust arises where transferor did not intend to confer beneficial interest; arises in favour of person advancing purchase money

  • MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae)
    (Petition 9 of 2021) [2023] KESC 2 (KLR)

    Principles on cohabitees' proprietary rights; need to make findings on proprietary rights whatever the nature of the relationship

  • Elayne Marian Teresa Oxley v Allan George Hiscock
    [2004] EWCA 546

    Lord Diplock's guidelines on common intention, detriment and quantification in constructive trusts

  • Gideon Mwangi Chege v Joseph Gachanja Gitutho
    (2015) eKLR

    Court may rely on parties' conduct to infer common intention to share property beneficially

  • Stephen Mkare Mulewa v Linda Newman
    (2015) eKLR

    Conduct of parties as basis to infer common intention; quote from Gissing v Gissing on inferring intention

  • Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri
    [2014] eKLR

    Lord Denning in Hussey v Palmer: constructive trust imposed whenever justice and good conscience require

Jurisdiction invoked
Environment and Land Court Act, 2011 (including section 13(7)); Article 159(2) of the Constitution of Kenya 2010

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, "Aniello Storelli v Damaris Mwongeli Mbindyo & Another", Case Analysis (2023). Environment & Land Case 125 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17968/eng@2023-06-05

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