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ELCPartially AllowedMombasa ELC (re-hearing pursuant to Court of Appeal, Mombasa Civil Appeal No. 55 of 2020)

Mohamed v Ashraf (Environment and Land Case 41 of 2016) [2026] KEELC 5265 (KLR)

Environment and Land Court
1 August 2026
4,958 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A Mombasa court split two family plots 30/70, recognizing that unpaid work like managing property counts toward ownership.

What this practically means

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Executive summary

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This Environment and Land Court judgment at Mombasa, delivered by Antony O. Ombwayo J, arose from a re-hearing ordered by the Court of Appeal in Mombasa Civil Appeal No. 55 of 2020. The Court of Appeal had set aside the earlier ELC judgment of A. Omollo J dated 23rd January 2020, found that the transfers of Plot Nos. XXVII/59 and X/71 from the parties' late mother, Shuni Haji Mirdor, to the defendant were irregular and fraudulent, found constructive trusts in the plaintiff's favour over both plots, and remitted the matter under Rule 33 of the Court of Appeal Rules for the trial court to receive additional evidence and assess and determine the value of the parties' beneficial interests. At the re-hearing, evidence established that Plot 59 (valued at Kshs 30,000,000) was ancestral family property, that the defendant made heavy financial contributions including repaying a Kshs 3,250,000 bank loan, and that the plaintiff supervised construction, managed both properties, collected rents, cared for the mother during the defendant's long absence abroad, and occupied part of Plot 71 as home and business. The plaintiff sought equal 50% shares; the defendant argued he had proved no contribution. The court held the plaintiff's non-financial contributions were proved on a balance of probabilities and enhanced the value of both properties. It awarded the plaintiff 30% and the defendant 70% of each property, ordered joint valuation, registration of the shares, payment to the plaintiff of 30% of rental income from filing of suit, refund of Kshs 3,250,000 to the defendant, and each party to bear their own costs as a family dispute.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal's finding of constructive trust in favour of the plaintiff over Plot Nos. XXVII/59 and X/71 binds this court
  2. 2.What is the value/percentage of the beneficial interest of the plaintiff and the defendant over Plot Nos. XXVII/59 and X/71
  3. 3.Whether the plaintiff proved his contributions to the acquisition, construction and management of the suit properties on a balance of probabilities

Key legal issues

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01

Quantification of beneficial interests under a constructive trust established by the Court of Appeal

Holding

The plaintiff holds a 30% beneficial interest and the defendant a 70% interest in each of Plot Nos. XXVII/59 and X/71

Reasoning

The court was bound by the Court of Appeal's findings that the transfers were fraudulent and irregular and that constructive trusts existed in the plaintiff's favour over both plots. On the additional evidence, the defendant made heavy financial contributions to acquisition, construction and loan repayment, while the plaintiff's proved contributions were supervision, management, collection of rent, care of the mother and residence. Balancing these, the court awarded the plaintiff 30% of each property and its rental income, and ordered refund of the Kshs. 3,250,000/= loan repayment.

p. 17
02

Effect of the Court of Appeal's remittal on the trial court's mandate

Holding

The trial court's mandate is limited to receiving additional evidence and assessing and determining the value of the parties' beneficial interests over the two plots

Reasoning

The Court of Appeal set aside the earlier ELC judgment, found the transfers of both properties from the late Shuni Haji Mirdor to the defendant were irregular and fraudulent, found constructive trusts in the plaintiff's favour, and remitted the matter under Rule 33 for the ELC to receive additional evidence, quantify the beneficial interests and enter judgment accordingly.

p. 1
03

Whether the plaintiff proved non-financial contributions warranting a share

Holding

The plaintiff's supervision, management and care contributions were proved on a balance of probabilities and enhanced the value of both properties

Reasoning

The plaintiff testified on oath that he supervised the construction of the ground floor and first two storeys on Plot 59, resided in and managed the property, and on Plot 71 supervised construction, collected rents, used proceeds to maintain the property and care for the mother. The court accepted this evidence on a balance of probabilities, rejecting the defendant's submission that the plaintiff had produced no evidence of contribution.

p. 17

Legal principles established

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  • A constructive trust is imposed by law wherever justice and good conscience require, proportionate to contribution
  • In quantifying beneficial shares the court may have regard to the whole course of dealing, including non-financial contributions
  • The trial court must take a holistic view of all contributions, financial or otherwise, in determining respective beneficial entitlements

Court orders

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  1. 1.There be a joint current valuation of the two properties
  2. 2.The plaintiff be awarded 30% of Plot No. 59 and the defendant 70%
  3. 3.The plaintiff is awarded 30% in Plot No. 71 and the defendant 70%
  4. 4.Both properties to be registered in the names of the plaintiff and defendant with the plaintiff taking 30% share and the defendant 70% share, operating from the date of filing the suit to dissolution of the tenancy in common
  5. 5.The plaintiff to be paid 30% of the income of each property from the date of filing suit to date of payment
  6. 6.Parties to share the rental income of Plot No. 59 from the date of filing the suit to date after deducting relevant taxes and overheads
  7. 7.The plaintiff to refund the defendant Kshs. 3,250,000/= paid to settle the bank loan
  8. 8.Parties to engage a firm of accountants to determine the rental income of the properties
  9. 9.Each party to bear their own costs, this being a family dispute

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

On appeal from
Court of Appeal
Mombasa Civil Appeal No. 55 of 2020
Jurisdiction invoked
Jurisdiction exercised pursuant to the remittal by the Court of Appeal under Rule 33 of the Court of Appeal Rules

Relief refused

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Plaintiff's claim for an equal 50% share of the beneficial interest in both suit properties

The court took a holistic view of contributions and found the defendant's financial contribution outweighed the plaintiff's non-financial contributions

p. 17

Costs

Each party to bear their own costs, this being a family dispute.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In conclusion, I do order that there be a joint current valuation of the two properties. The plaintiff to be awarded 30% of the land No. 59. The defendant be awarded 70%. The plaintiff is awarded 30% in Plot NO. 71. The defendant is awarded 70%.
p. 17Final orders - quantification of beneficial interests
Both properties to be registered as joint tenancies with the plaintiff taking 30 % share whereas the defendant to take a 70% share.
p. 18Registration of shares
Each party to bear their costs this being a family dispute.
p. 18Costs
By whatever name it is described, it is a trust imposed by law whenever justice and good conscience require it.
p. 3Constructive trust doctrine (Hussey v Palmer)
The specific mandate given to this Honorable Court by the Court of Appeal is limited to receive additional evidence and thereafter assess and determine the value of the beneficial interest of the Plaintiff and the Defendant herein over the suit properties being Plot Nos. XXVII/59 and X/71.
p. 1Scope of remittal
I do find that the plaintiff has contributed to the improvement of property that is ancestral to the parties, through supervision of the construction and management of the same and is therefore entitled to benefit from the income from the same.
p. 17Non-financial contributions proved

Issues in the judgment

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minor

The court describes registration as 'tenants in common' but later orders that 'Both properties to be registered as joint tenancies', an internal inconsistency in the disposition

minor

The judgment contains no express case number or formal disposition heading for the re-hearing before the ELC

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, "Mohamed v Ashraf (Environment and Land Case 41 of 2016) [2026] KEELC 5265 (KLR)", Case Analysis (2026). Mombasa ELC (re-hearing pursuant to Court of Appeal, Mombasa Civil Appeal No. 55 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5265/eng@2026-07-31

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