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ELCPartially AllowedCivil Suit No. 367 of 2001· [2024] KEELC 4296 (KLR)

Gekong’a v Gembe & 4 others (Environment & Land Case 438 of 2016) [2024] KEELC 4296 (KLR)

Environment and Land Court
23 May 2024
4,158 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that land registered in one person's name can still belong to everyone who paid for it, ordering the registered owner to share it fairly.

What this practically means

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Executive summary

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The plaintiff, Mong'are Gekong'a, sued over the purchase of L.R. No. 13287/17 (I.R 47993/1), Nakuru, which Kenya Commercial Bank sold by public auction in March 2001 for Kshs 3.5 million after the chargeor defaulted on loans. The 2nd defendant, Elijah Ombogo, bid in his own name, but the plaintiff claimed that he and the defendants were members of a group who contributed to the purchase price on the understanding that each would receive acreage equivalent to his contribution, with the title transferred to the 2nd defendant to hold for all. The plaintiff, who paid Kshs 1.4 million, sought orders for disclosure of all contributors and amounts paid, a declaration on proportional acreage, and deposit of the title deed pending transfers. The 2nd defendant denied any group purchase, asserting he was the sole purchaser who resold portions at Kshs 80,000 per acre. The 3rd defendant corroborated the joint-purchase account. The court believed the plaintiff and found the arrangement constituted a constructive trust: the 2nd defendant held title on behalf of the contributors, and his retention of the title in breach of fiduciary duty was aimed at unjust enrichment. Relying on sections 25, 26 and 28 of the Land Registration Act and the Supreme Court's decision in Shah v Mombasa Bricks & Tiles, the court held that indefeasible title is subject to overriding interests including constructive trusts. Judgment was entered for the plaintiff with orders for disclosure of contributors and amounts paid, and a declaration that each member receives acreage equivalent to their contribution; costs were awarded against the 2nd defendant.

Key legal issues

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01

Whether the plaintiff proved joint purchase of the suit property through the 2nd defendant

Holding

Yes - the court believed the plaintiff that the 2nd defendant bid and held title on behalf of all contributors who shared the purchase price

Reasoning

The court found the property was auctioned in March 2001 for Kshs 3.5 million; the 2nd defendant did not pay the whole purchase price but teamed up with the plaintiff and other defendants. Each contributor was to receive acreage equivalent to his contribution. PW1, DW1 and DW3 demonstrated the agreement that the title be transferred to the 2nd defendant to hold for the members.

p. 5
02

Whether a constructive trust arose over the registered title

Holding

Yes - a constructive trust arose in favour of the contributors despite the 2nd defendant's registration as proprietor

Reasoning

Sections 25, 26 and 28 of the Land Registration Act render title indefeasible but subject to overriding interests, including trusts. Relying on Shah v Mombasa Bricks & Tiles (Supreme Court), the court held a constructive trust can limit the right to property. The 2nd defendant's retention of title in breach of fiduciary duty was aimed at unjust enrichment.

p. 5
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What remedies flow from the constructive trust

Holding

Disclosure of contributors and amounts paid, and a declaration that each member gets acreage equivalent to their contribution

Reasoning

The court granted the substantive prayers for disclosure and the declaration that each member receives acreage proportional to their payment to the bank. Costs were awarded against the 2nd defendant as the registered proprietor who was the stumbling block to the sharing. The prayer for deposit of the title deed was not expressly granted.

p. 7

Legal principles established

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  • A certificate of title is indefeasible but subject to overriding interests including trusts, which include constructive trusts
  • A constructive trust arises where a registered proprietor, in breach of fiduciary duty, retains title for his own benefit amounting to unjust enrichment

Court orders

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  1. 1.An order for the disclosure of all the contributors to the purchase of land L.R. No. 13287/17 (I.R 47993/1) Nakuru
  2. 2.An order for the disclosure of all the amounts each member paid to the bank
  3. 3.A declaration that each member gets acres equivalent to his/her contribution paid to the bank
  4. 4.Costs of the suit to be paid by the 2nd defendant to the plaintiff
Jurisdiction invoked
Original civil jurisdiction over land disputes (Environment and Land Court)

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, "Gekong’a v Gembe & 4 others (Environment & Land Case 438 of 2016) [2024] KEELC 4296 (KLR)", Case Analysis (2024). Civil Suit No. 367 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4296/eng@2024-05-23

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