Mayabi v Wanjohi (Originating Summons E047 of 2022) [2024] KEELC 1279 (KLR)
The bottom line
#A Nairobi court confirmed that whoever pays the full purchase price for land owns it, even if the title sits in someone else's name.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant acquired title by adverse possession
The claim failed because no certificate of lease or title was produced to show the suit property was registered, and an adverse possession order under Section 38 issues only against a registered proprietor.
The court restated the elements of adverse possession, including factual possession, animus possidendi, and occupation nec vi, nec clam, nec precario for twelve years. However, Section 38 directs the Land Registrar to alter the register by substituting the adverse possessor for the registered proprietor. The county records showed the property in the Respondent's name, but no certificate of lease or title was availed to confirm registration under any legal regime, so the order could not issue.
Whether a resulting trust exists in favour of the Applicant
The Applicant proved a resulting trust, having paid the full purchase price in 1992, with the Respondent acknowledging receipt and granting a Power of Attorney.
The court applied Halsbury's definition of a resulting trust and the Court of Appeal's guidance that the party asserting a trust bears the burden of proving it under Section 107 of the Evidence Act. The sale agreement and Power of Attorney demonstrated the parties' intention that the Applicant deal with the property as owner. Guided by Twalib Hatayan, the court held that a resulting trust arises in favour of the person who advances the purchase money, and concluded the Applicant had proved the trust.
Legal principles established
#- A claim of adverse possession under Section 38 of the Limitation of Actions Act lies only against a registered proprietor of land.
- A resulting trust automatically arises in favour of the person who advances the purchase money, whether or not the property is registered in his name.
- Courts will not easily impute a trust; the intention of the parties must be clearly determined before a trust is implied.
Court orders
#- 1.A declaration that there exists a resulting trust in favour of the Applicant over Plot No. 681 in Section A2 of Kayole Site and Service measuring approximately 75m x 20.5m by dint of payment in full of the purchase price as at 15/1/1992.
- 2.The resulting trust is dissolved and an order issued directing that Plot No. 681 in Section A2 of Kayole Site and Service be transferred from the name of Elizabeth Wangechi Wanjohi to the name of Major Willis Gershom Mayabi.
- 3.The Respondent is ordered to release to the Plaintiff all completion documents necessary to effect the Judgment.
- 4.In default of the Respondent's compliance, the Honourable Deputy Registrar of the Court is authorized to sign all necessary documents required to effect the transfer.
- 5.The Applicant is granted costs of the suit as prayed.
- Jurisdiction invoked
- Section 38 of the Limitation of Actions Act and Order 37 Rule 3 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mayabi v Wanjohi (Originating Summons E047 of 2022) [2024] KEELC 1279 (KLR)", Case Analysis (2024). Originating Summons No E047 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1279/eng@2024-02-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.