Aniello Storelli v Damaris Mwongeli Mbindyo & Another
The bottom line
#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
#Executive summary
#Key legal issues
#Whether an express trust existed over the suit properties
No express trust; the defendants appeared as registered proprietors, not trustees, and the plaintiff was not endorsed on any title
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.
Whether a resulting trust arose over Kwale/Waa/932 and 1206
Yes; the plaintiff proved on a balance of probabilities that he financed the purchase and intended the properties be held in trust for him
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.
Whether a constructive trust arose over the Diani/Stow City properties
Yes, over the undeveloped and partly developed plots (1103, 1105, 1106, 1107, 1120), inferred from the parties' conduct and the plaintiff's detrimental reliance
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.
Whether the plaintiff's unproduced documents had evidentiary value
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
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.
Whether the court could grant relief notwithstanding indefeasibility of first registration under section 25(1) of the Land Registration Act
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
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.
Legal principles established
#- 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
#- 1.Declaration that Kwale/Waa/932 and Kwale/Waa/1206 were held in trust by the 1st defendant as trustee for the plaintiff
- 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.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.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.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.No orders as to costs
- Jurisdiction invoked
- Environment and Land Court Act, 2011 (including section 13(7)); Article 159(2) of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.