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ELCPartially AllowedNot stated in the judgment as provided· [2024] KEELC 6873 (KLR)

Charity Muringo Waithaka & 2 Others v Catherine Wamuyu Waithaka & Another

Environment and Land Court
17 October 2024
MOMogeni
4,369 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 a mother holds family land in trust for her children and cannot sell it without their written consent.

What this practically means

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Executive summary

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The 1st and 2nd plaintiffs, biological children of the defendant, sued their mother claiming that land parcel L.R 2327/53 (Original Number 2327/8/45), registered in the estate of their late grandmother Charity Muthoni Benson, was held by the defendant and the interested party (the plaintiffs' maternal uncle and co-administrator) on a constructive and legal trust. They sought a declaration to that effect and an injunction restraining sale or transfer without their written consent, alleging the defendant was disposing of the property, had entered a Kshs 30,000,000 sale agreement, and had exclusively benefited from the estate to the detriment of the interested party and the beneficiaries. The defence denied any trust, asserted the plaintiffs were not beneficiaries and lacked locus standi, and claimed the original parcel had been subdivided and sold in 1999. The 3rd plaintiff withdrew. At trial, the plaintiffs testified they had lived on the property since birth and that the defendant sold part of it to educate the 2nd plaintiff; the defendant admitted receiving Kshs 30,000,000, using the grant to transact on untitled property, and never remitting income to the mentally incapacitated interested party. Applying Juletabi and Twalib Hatayan, the court held the burden of proving a trust was discharged, finding it inequitable for the defendant to dispose of the property ignoring the family's livelihood and dependency. The court declared the property held on constructive and legal trust, restrained its sale or transfer without the plaintiffs' and interested party's written consent, and directed the parties to pursue distribution of the estate in the proper forum. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether a constructive trust arose over the suit property

Holding

The court found the defendant holds the suit property in a constructive and legal trust for the family, as the plaintiffs and interested party lived on and depended on the property and the defendant had benefited exclusively

Reasoning

Applying the principles in Twalib Hatayan and Juletabi, the court held a constructive trust may be imposed where equity demands the legal owner be treated as trustee. The plaintiffs lived on the suit property which was their home, the defendant sold part of it to educate the 2nd plaintiff and never remitted income to the interested party, making it inequitable for her to deny the family a beneficial interest. Distribution of the estate was left to the proper forum.

p. 7
02

Burden of proof of a trust

Holding

The onus lies on the party asserting the trust, and the plaintiffs discharged it on the evidence

Reasoning

The court cited Peter Moturi Ogutu and Juletabi for the proposition that a claimant must establish the trust on which the case is hinged. Considering the testimony that the defendant exclusively benefited from the property, never gave the interested party money, and sold part of the property for her son's education, the court found the trust established. The defendant produced no evidence of compensation by grabbers nor her sister's renunciation.

p. 5

Legal principles established

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  • The party relying on the existence of a trust bears the onus of proving it
  • A constructive trust is imposed by the court where it would be inequitable for the legal owner to deny a beneficial interest, and imposition guards against unjust enrichment

Court orders

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  1. 1.A declaration that land parcel L.R 2327/53 (Original Number 2327/8/45) is held by the Defendant and Interested Party on a constructive and legal trust vide Re Estate of Charity Muthoni Benson High Court Succession Cause 759 of 1987
  2. 2.An injunction restraining the sale of the parcel of land, or any transfer of title, without the express written consent of the Plaintiffs and the Interested Party
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 63(2)(a)
  • Land Registration ActSections 24, 25 and 26
  • Trustee ActNot specified

Cases cited (4)

  • Peter Moturi Ogutu -vs- Elmelda Basweti Matonda & 3 Others
    (2013) eKLR
  • Juletabi African Adventure Limited & another …Vs…Christopher Michael Lockley
    [2017] eKLR
  • Twalib Hatayan Twalib Hatayan & Anor vs. Said Saggar Ahmed Al-Heidy & Others
    [2015] eKLR
  • Re Estate of Charity Muthoni Benson
    High Court Succession Cause 759 of 1987
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land; court noted distribution of the estate lies elsewhere

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, "Charity Muringo Waithaka & 2 Others v Catherine Wamuyu Waithaka & Another", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6873/eng@2024-10-17

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