Gekong’a v Gembe & 4 others (Environment & Land Case 438 of 2016) [2024] KEELC 4296 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the plaintiff proved joint purchase of the suit property through the 2nd defendant
Yes - the court believed the plaintiff that the 2nd defendant bid and held title on behalf of all contributors who shared the purchase price
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.
Whether a constructive trust arose over the registered title
Yes - a constructive trust arose in favour of the contributors despite the 2nd defendant's registration as proprietor
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.
What remedies flow from the constructive trust
Disclosure of contributors and amounts paid, and a declaration that each member gets acreage equivalent to their contribution
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.
Legal principles established
#- 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
#- 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.An order for the disclosure of all the amounts each member paid to the bank
- 3.A declaration that each member gets acres equivalent to his/her contribution paid to the bank
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.