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ELCPartially AllowedELC No. 198 of 2012 (Consolidated with HCCC No. 206 of 2012)· [2024] KEELC 5580 (KLR)

Ngibuini & 3 others v Githaiga & 16 others (Environment and Land Case Civil Suit 198 & 206 of 2012 (Consolidated)) [2024] KEELC 5580 (KLR)

Environment and Land Court
25 July 2024
7,132 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that a church society, not its individual donors, owned disputed land—donors' claims failed under privity of contract.

What this practically means

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Executive summary

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This consolidated dispute concerned LR 15460 (Grant No. 57288), purchased in 2005 from the 2nd defendant under an agreement naming Philip Githaiga, Veronica Ngibuini and Irene Kageni as trustees of Stars for Jesus Ministries as purchasers. The plaintiffs, including American donors Amy Kimicinski and her husband, claimed the 3rd and 4th plaintiffs financed the purchase (USD 75,000 allegedly raised by mortgaging their US home) on the understanding that the property would serve the society but ultimately revert to them as a retirement home. They sought transfer of the property, injunctions, and alternatively a refund of USD 70,000. The 1st, 3rd and 4th defendants, the registered current officials of the society, contended the society was the true purchaser and counterclaimed in HCCC No. 206 of 2012 for eviction and damages. The court held that the sale agreement clearly identified the society as purchaser, ousting the 3rd and 4th plaintiffs under the doctrine of privity of contract. The trust claim failed because no trust was pleaded, no wrongdoing was established for a constructive trust, and the funds were donations rather than the plaintiffs' personal money. The plaintiffs also lacked capacity to challenge the defendants' status as society officials per the Registrar General's records. The plaintiffs' suit was dismissed. The defendants' claim in Case No. 206 of 2012 was allowed with an eviction order and permanent injunction, but no damages were awarded, special damages being unproved. Each party was directed to bear its own costs.

Key legal issues

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01

Who was the purchaser and beneficial owner of the suit property under the sale agreement of 28.9.2005

Holding

The purchaser was Stars for Jesus Ministries through its trustees Philip Githaiga, Veronica Ngibuini and Irene Kageni; no individual plaintiff acquired rights under the agreement

Reasoning

The agreement named the trustees of Stars for Jesus as purchaser. The cheque for USD 65,000 was drawn in favour of the society, corroborating that the society was the purchaser. PW1 and PW2 admitted in cross-examination that the buyers signed as trustees. Neither the 3rd/4th plaintiffs nor any individual defendant can claim the land personally.

p. 11
02

Whether the plaintiffs hold a resulting or constructive trust over the suit property

Holding

No; the trust claim was not pleaded and, even if it had been, it failed on the evidence - no wrongdoing was established and the funds were donations

Reasoning

Issues flow from pleadings and no trust was pleaded. A constructive trust requires wrongdoing, which was not tabulated against the seller or society. On resulting trust, PW1 failed to establish that purchase funds came from her personal efforts; the monies were donations mobilised for the society.

p. 12
03

Whether the plaintiffs could challenge the validity of the 1st, 3rd and 4th defendants as officials of the society

Holding

No; there was no evidence challenging their registration status, so the plaintiffs lack capacity to impugn it

Reasoning

The Registrar General's letter of 11.4.2012 confirmed the 1st, 3rd and 4th defendants as chairperson, secretary and treasurer. The plaintiffs adduced no evidence challenging their registration as officials under any name of the society; consequently the claim of ownership by the plaintiffs fails.

p. 11
04

Whether the 1st, 3rd and 4th defendants were entitled to special and general damages

Holding

Special damages was not proved and general damages was declined as unjust

Reasoning

Although the court found that the 3rd plaintiff had evicted the defendants contrary to the preservation orders of 31.7.2012, the court considered that PW1 was a supporter of the society which benefited from her donations, and held it would be unjust to condemn her to pay damages.

p. 13

Legal principles established

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  • A court cannot re-write a contract between parties; parties are bound by its terms unless coercion, fraud or undue influence are pleaded and proved
  • Non-parties to a contract cannot claim benefits under it under the doctrine of privity of contract
  • Courts will not imply a trust except in cases of absolute necessity; the intention of the parties to create a trust must be clearly determined

Court orders

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  1. 1.The suit in ELC 198 of 2012 is dismissed
  2. 2.The suit in ELC 206 of 2012 is allowed to the extent that an order of eviction of the defendants in that case is issued
  3. 3.A permanent injunction restraining the defendants in Case No. 206 of 2012 from trespassing upon the suit land
  4. 4.Each party shall bear their own costs of the suit

Authorities

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Legislation

  • Land ActSection 38(2)
  • Societies Actnot specified

Cases cited (9)

  • National Bank of Kenya vs. Pipeplastic Samkolit (k) Ltd & Another
    (2001) eKLR
  • Kenya Women Finance Trust v Bernard Oyugi Jaoko & 2 Others
    [2018] eKLR
  • Africa Fund Endangered Wildlife (USA) incorporated v Januaris Mutisya
    [2021] eKLR
  • Savings and loans Kenya Ltd v Kanyenje Karangaita Gakombe & Another
    [2015] eKLR
  • Helene Margaretha Van Der Roest & 2 Others v James Mwangi Gacheru & 2 Others
    [2021] eKLR
  • Mbiti v Adalja & 3 others
    (Environment & Land Case 576 of 2016) [2023] KEELC 21155 (KLR)
  • Julebati African Adventure Limited & Another v Christopher Michael Lockley
    [2017] eKLR
  • Twalib Hatayan Twalib Hatayan & Another vs. Said Saggar Ahmed Al-Heidy & Others
    (2015) eKLR
  • William Charles Fryda v Assumption Sisters of Nairobi Registered Trustees & Another
    [2017] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (consolidated suits ELC 198 of 2012 and HCCC 206 of 2012)

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, "Ngibuini & 3 others v Githaiga & 16 others (Environment and Land Case Civil Suit 198 & 206 of 2012 (Consolidated)) [2024] KEELC 5580 (KLR)", Case Analysis (2024). ELC No. 198 of 2012 (Consolidated with HCCC No. 206 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5580/eng@2024-07-25

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