Cyrus Robbert Sala Zibu, Klaus Herbert Richter, Steven Makau, Peter Kimeu Mwangangi, Lilian Katunge Muema, Peter Mang’ala, Gidieon Kioko Kivanguli, Peter Musau, Juma Oliver Masila & Mutuku Katala(Suing on their behalf and on behalf Of the people of Makuni County) v Henry Muli Munguti, Henry Mwake, David Nyungu, Michael Kioko, Penina Mumbe, Alice Mwangeci, National Land Commison,Government of the Makueni County, Registrar of Societies, Attorney General & Good Hope Rehabilitation Center (Certificate No. 26442) [2018] KEELC 2764 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURTAT MAKUENI

ELC NO. 78 OF 2017

FORMALY MACHAKOS CIVIL CASE 13 OF 2014

FORMERLY NAIROBI CIVIL SUIT NO. 77 OF 2017

CYRUS ROBBERT SALA ZIBU....................................1ST PLAINTIFF

DR. KLAUS HERBERT RICHTER............................2ND  PLAINTIFF

STEVEN MAKAU.........................................................3RD  PLAINTIFF

PETER KIMEU MWANGANGI..................................4TH  PLAINTIFF

LILIAN KATUNGE  MUEMA.....................................5TH  PLAINTIFF

PETER MANG’ALA.......................................................6TH PLAINTIFF

GIDIEON KIOKO KIVANGULI...................................7TH PLAINTIFF

PETER  MUSAU..............................................................8TH PLAINTIFF

JUMA OLIVER MASILA..............................................9TH PLAINTIFF

MUTUKU KATALA.....................................................10TH  PLAINTIFF

(Suing on their behalf and on behalfofthepeople of Makuni County)

=VERSUS=

HENRY MULI MUNGUTI.........................................1ST DEFENDANT

HENRY MWAKE.......................................................2ND  DEFENDANT

DAVID NYUNGU........................................................3RD DEFENDANT

MICHAEL KIOKO.....................................................4TH  DEFENDANT

PENINA  MUMBE.......................................................5TH  DEFENDANT

ALICE  MWANGECI..................................................6TH  DEFENDANT

NATIONAL LAND COMMISON..............................7TH  DEFENDANT

GOVERNMENT OF THE MAKUENI COUNTY....8TH  DEFENDANT

REGISTRAR OF SOCIETIES...................................9TH  DEFENDANT

HON. ATTORNEY GENERAL................................10TH  DEFENDANT

GOOD HOPE  REHABILITATION

CENTER (CERTIFICATE NO. 26442)......................11th  DEFENDANT

JUDGMENT

1. By their  plaint dated  28th February, 2014 and filed  in court  on the 3rd March, 2014 the  plaintiffs, suing on their own behalf and on behalf of the people of Mtito Andei Area Makueni  County ,pray for judgement against  the 1st, 2nd , 3rd, 4th, 5th, 6th , 7th , 9th  , 10th and 11th  Defendants for orders;

a. A  declaration that the relationship between the 2nd plaintiff and the 1st  defendant starting from the year  1991 up to  2013 resulted in the creation of an implied trust.

b. A declaration that the 1st 2nd , 3rd 4th ,5th and 6th defendant are trustees of the 2nd plaintiff and the donor friends of the 2nd plaintiff for all set-ups systems, documents, entities, funds movable and immovable assets now registered in the name of the 1st defendant , the  1st defendant’s agents, spouse, servants and/or appointees of the 11th defendant.

c. A declaration that all accounts currently operated in the name of the 11th defendant and the funds therein are assets of the trust of the 2nd  plaintiff and the donors.

d. A declaration that the implied trust between the 2nd plaintiff and the 1st defendant graduated to and became a public trust in which the plaintiffs and the people of Makueni County are the beneficiaries thereof .

e. A declaration that the existing society known  as Good Hope Rehabilitation Centre registration Number  26442 is an asset/entity of the plaintiffs and the current officials hold such an office as trustees of the plaintiffs.

f. A mandatory injunction compelling the 9th defendant to substitute the current  officials of the 11th defendant  within a period of thirty(30) days with officials appointed by the plaintiffs.

g. A mandatory injunction compelling the 1st, 2nd , 3rd, 4th, 5th and 6th defendant   by themselves their agents  and /or servants to surrender  all bank accounts and the deposits therein, movable  and immovable assets in his custody and/or currently in the name of the 11th defendant to the plaintiffs.

h. A mandatory injunction  compelling the 7th defendants to register Plot No. 3292 in the name of the 11th defendant.

i. A perpetual injunction restraining  the 1st, 2nd , 3rd , 4th , 5th and 6th defendants by themselves their servants and/or agents from interfering with the operations of the 11th defendant.

j. Any other order  the court may find expedient

k. Costs of the suit.

2. The claim is denied by the 1st, 2nd, 3rd, 4th, 5th , 6th and 11th defendants vide their joint  statement of defence dated 16th May, 2014 and filed in court on 19th May, 2014.

3. On the 25th July, 2014 the 8th  defendant  filed its defence dated 24th July, 2014.  The 8th defendant’s name was however struck off the proceedings vide the court’s ruling dated 6th February, 2015. The 7th,  9th and 10th  defendants never filed  their defence.

4. On the 11th September, the plaintiffs  and the 1st to 6th and  11th  defendants filed a list of agreed issues dated  23rd June, 2017.

5. Hearing of the plaintiffs’ case commenced on the 27th September, 2017 while that of the defendants  proceeded on the 28th September, 2017.

6. The plaintiffs called Dr. Klaus Herbert Richter  and Steve Makau who are the second and the third plaintiffs herein as their  witnesses.

7. The second plaintiff adopted his statement dated 26th February, 2014 as his evidence.  He said that he is a retired psychiatrist but  works in  a hospital as well as leading an organization in Germany known as  Blue Cross that operates  in more than 40 companies.  The second  plaintiff told the court that he met the first defendant in  1991 while he was on holiday.  He pointed  out that they became friends leading to the first  defendant inviting him to his home.  The second plaintiff added that  he wanted  to become  a missionary doctor out of his desire to help people. That the first defendant offered  to escort him and thus the first defendant  became a messenger and had a salary .

8. He revealed  that Good Hope  Rehabilitation  Centre came  into being  in  the year 2006  as a result of many children  and addicts . He went on to say that he gave the first  defendant  money to renovate  his house  and gave the   latter additional money to construct  a bigger home  which  he could lease  out so that he could   work without hindrance. It was the second   plaintiff’s evidence that  he got  a sponsor  to construct a home   for the children and addicts.  The  second plaintiff produced  pages  45 to  158 of bundle of  documents  annexed  to the plaint   and another set of documents  running  from pages 13 to 252 in the plaintiffs’ application as PEX Nos. 1 and 2  respectively.  He went on to say that he has constructed a home and  a centre in  Kisumu  for street children and similar homes in Korogocho and Mathare in Nairobi, Runyejes in Embu, Jinja in Uganda as well as in Ethiopia.

9. The  second plaintiff further said   that he used to send the money directly to  the first defendant and later to the accountant  after they got one.  He went on to say that they had many sponsors  in Germany and revealed that each child that  was sponsored was  entitled to  euros 50. It was also  his evidence  that  he gifted  Elbingerode   to the first defendant.

10. His evidence in cross-examination was that he does not lay claim to Elbingerode home.  He said that he knows of Bell Rehabilitation Centre. He further  said   that   he and the first defendant worked  on the  basis of trust.   He said that   he informed the first defendant about the need to register an organization when the project grew. He further said that audit revealed misuse of funds and that other sponsors made their donations through him.  He also said  that bank transactions show where the donated money came from.  And finally, the second plaintiff disclosed that he does not have a work permit.

11. The second plaintiff’s evidence in re-examination was that document number 152 in  PEX No. 1   shows the instructions that he gave to the first defendant whenever he sent him money.  He went  on to say that  the purpose of sending money to the first defendant was for the development of the children in the  home, education, buying of land, construction  and activities  to do with addicts.  He said that even though he is not a registered member  of  Good  Hope  in Kenya, his agreement  with the first defendant was that Good  Hope Society that was formed would be for  the welfare  of children.

12. The third  plaintiff  in his evidence  in chief  adopted his   statement dated 26th February, 2014. He said   that the second plaintiff  identified poverty and in the society and together  with the first defendant  chose Mtito Andei as their base.  He went on  to  say  that he   joined the board  of the  children’s home in the year 2001 upon the request of the second plaintiff  and the first defendant. The third plaintiff added that upon  joining  the board, the board members decided to put  structures of the organization.  He said that they employed a manager to  run home. He went on to say that they also decided to establish a trust to own the assets through a trust  deed.  He  identified the assets as land, a big building   and a directors’  house. He  said that the former  building  is known as Good Hope Children’s Home.  He  revealed that all the assets were  bought  by the  second plaintiff  through the money channeled to the first defendant   and  pointed  out  that the  assets were for  the community  and not the first defendant. It was also his evidence that when this case started,  he realized that  one of the parcels of land and two vehicles were registered in the first defendant’s name.

13. His evidence in cross-exam  by Mr. Anzala  for the defendants was that he came to know  the first  defendant in 1996, a time  when the latter was operating some business in the beach.  He said that he was in the board that appointed one Henry Kosgei as the manager.  He further said that when he saw the Registrar of Societies, the latter advised him to register a new entity whose name is Good Hope  Centre.  Regarding the trust deed, the third plaintiff  said that none was prepared. He also said that he is not a registered  member of Good Hope  Rehabilitation Centre.

14. The  defendants called  the first defendant as their  sole witness. His evidence was that he is a business man and also   runs  Good Hope Rehabilitation Centre. Like  the  plaintiffs’ two witnesses, the first defendant adopted his statement dated  30th August, 2017. He produced  his documents that he filed in court on  5th September, 2017 as DEX. No. 1.

15. The first defendant’s evidence was that he met the second plaintiff in 1991 when that latter bought artifacts from him. The second plaintiff  went to see him the following day. The second plaintiff thanked  him for having offered him a good price  for the artifacts  that he had purchased. Their conversation led to their being friends. The first defendant took the second plaintiff to his  rural home  around chrismas time where the latter met  many children some of whom were from  the first defendant’s  poor neighbours and it was at that time that the second  plaintiff  promised  to look for  sponsors upon going back to his country.

16. The first defendant admitted in his  evidence in cross-examination  by Mr.  Munyithia for the plaintiffs   that  he received  money from the second plaintiff even though he could not be able to  disclose the amount that  he has received  since 1991. He said   that he and the second  plaintiff did not enter into any agreement over the issue of funds.  He added that it was only him and the second plaintiff when  the latter  made the arrangements on how to help the children.  He said that   second plaintiff would direct him on how  he was to spend the money in respect of the children.  According to him, the second plaintiff was not a sponsor and only acted as a source for funds.  The fist defendant revealed that he would release the money to the  children whenever  it was sent to him. He said that he was the one who instituted the board and informed the second plaintiff about it.  The first defendant said that he bought land from one Joseph Kitungu with his own money. He  added that he sued five(5)   people in Nairobi  HCCC No. 140/13 and that   the suit was  dismissed  on the 16th August, 2016. He further stated that he also filed Nairobi HCCC No. 77/17.  Regarding   the money in the two accounts referred to in page 42 of HCCC No.  77/17 (DEX No. 1),  the first defendant said that it came from   International Federation  of Blue  Cross (IFBC).  The first  defendant  told the court that he does not  know of the relationship between the second plaintiff and IFBC.  He also said that he received  donations from other  donors and added that the second plaintiff and other donors did not give him money for the construction  of a center.  It was  also  his evidence that no donor gave him money   with  instructions to buy land and nor could he remember having been given money by a donor to drill a  bore-hole. He said that he received money from IFBC to  buy materials for  two   green houses on the disputed parcel of land. Regarding the pump, the first defendant told the court that he bought it himself.  He said that  he lives in a house which  he personally  built and pointed out that the second plaintiff  did not donate  any house to him. He  however  said  that the second plaintiff gave him money after the construction  stalled. He said that he did not   use  donors money to  buy a  5 acre plot.  The first  defendant  however  admitted  that plot  number  3792 ought to have been  registered in the name of Good Hope  Centre.

17. His evidence  in re-examination was that the money that came from  the second plaintiff was for paying school fees. Regarding  plot  number  3792, the first defendant reiterated that it belongs to him while plot number 3763 is in the name of Good Hope Centre.

18. The plaintiffs filed their submissions on the 19th October, 2017 while the 1st, 2nd , 3rd 4th 5th , 6th and 11th defendants  filed theirs on the 7th November, 2017. Their advocates highlighted their submissions  on the 15th February, 2018.

19. The plaintiff’s counsels submissions were that the parties  relationship  was  founded on trust  and pointed  out that in order for them to formalize their relationship, the second plaintiff asked the first defendant to form an organization.

20. The counsel further  submitted that funds were disbursed to the first defendant who purchased movable   and immovable property. He  went on to submit that records  of the second defendant were not available  from the Registrar of Societies and that the  plaintiffs have sued in a representative capacity. The counsel submitted that the operation of the first defendant is for the benefit of Mtito Andei Community.

21. The counsel further submitted that two major issues  that arise are :-

I.  Whether  the relationship between  the second plaintiff  and the first defendant created  an implied   trust  where the first defendant was  the interim trustee of the second  plaintiff  being the  founder.

II. Was there a breach of trust between the second plaintiff and the first defendant?

22. The counsel submitted that there are three major  disputes which he highlighted as :-

I. Immovable property

II. Movable property i.e money in the bank account

III. Control and management of the  11 defendant

23. Regarding  the  first   dispute  the counsel submitted  that  the same relates to plot number 3792 where the Rehabilitation Centre is situated.  As for the  second  dispute the counsel  submitted that money was donated by the second plaintiff and other donors.   He added  that motor vehicles were also  donated.

24. The counsel went on to submit that for an  implied  trust to be created, there  need not be a document in writing.  The counsel  added that the court should ask itself as to what was the intention of the parties.  The counsel posed  the following  questions;

I.  Did  the donors  spend  money towards the purchase of the property?

II. Did  the donors   give specific instructions on the expenditure of the money?

III. Did the donee receive any money and act on those instructions?

25. The counsel   submitted that in paragraph 8 of their   defence, the first defendant  admitted  that he received money from the second  defendant   as one of the donors of the 11th defendant  as stated in paragraph 14 of the plaint and  correctly  pointed out that  parties are bond by their pleadings. The counsel pointed out that there is  symbiotic  relationship between  the email communication and the bank statements and   added that there was specific instructions on how  money was to be spent.

26. The counsel  submitted that  the notable facts of the  3 properties  i.e plots  numbers 3762, 3763  and  3792 is that they are all located in the same geographical  area and that they were all bought as a result of the funds provided by the second plaintiff. The counsel pointed out that the third fact  is that plots numbers 3762 and 3763 are  registered in the name of the  11th defendant while plot number  3792 is registered in the name of the first defendant   and pointed out  that  there is  mischief to be read  in the latter plot.

27. The  counsel further submitted that the plaintiffs have  discharged their burden of proof by showing that money was sent to the 1st  defendant which meant for  purchase and construction of  home and establishment of  a society.  As such, the counsel opined, the burden of proof  had shifted to the defendants to prove otherwise.

28. It was the counsel’s  submissions that having established  trust  the next issue is  whether  there was a breach  of judiciary duty.

29. In  answer to this  question, the counsel referred the court to the audit report and the  minutes  of 16th February, 2013 at  66 of PEX No. 1 and  answered his  own question   it in the positive.

30. On the other hand, the counsel  for the  1st , 2nd, 3rd, 4th , 5th , 6th and  11th  defendants submitted that the audit report cited   in paragraph  22 of the  plaint  was  neither shown to the court  nor was it produced. The counsel went on to submit that none of the plaintiffs is an official of the 11th defendant and that the second plaintiff does not have a work permit in Kenya.  The counsel added that IFBC is not a party to this suit. The counsel further submitted that the first defendant does  not deny having  received  money and that the funds were used as instructed. The counsel pointed   out  that the first defendant did state that he has other donors who are not connected  to the second plaintiff.

31. The counsel  further submitted that the 11th defendant   was registered in 2008 as a society and it is governed  under the Societies  Act. He went on to submit that no trust deed has been produced to show that the officials of the 11th defendant hold their positions in trust for  other persons. The counsel  further submitted that as officials, they have the mandate to hold the property of the society and added that this is not the proper forum to bring  such dispute.

32. Regarding the case  said to be pending  in Nairobi, Mr.  Anzala submitted  that a ruling was delivered  by Justice Sergon on 17th   November, 2017.  On the ownership of  plot  number  3792, Mr.  Anzala Submitted that the  guiding  principle is  the law of Contract Act and that  there was no evidence on purchase  of the said  property.

33. The counsel  referred to page 17 of the plaintiffs’ submissions  where it is said that the property was purchased  in 2006 and pointed out that the first defendant has a sale agreement for  2010.

34. The  defendants’ counsel went on to submit that prayer  c,d,e,f,g, i and (h) cannot  be granted by this court on account of lack of evidence and jurisdiction.

35. The  counsel  further submitted that even though it is admitted that the second plaintiff  did contribute toward the management of the society; there is no creation of a trust.  The counsel termed  the case before court as one that lacks legs to stand on.

36. I have  read the  evidence  on record together with the exhibits produced  in evidence and the submission filed by the parties  herein.  It seems  to me that the dispute between the parties revolves  around ownership of certain assets allegedly acquired using donor  funds from the second  plaintiff and  the  other donors. These assets are:-

I. Immovable property,

II. Money in  bank account  and,

III. Control  and management of the 11th defendant

37. As for  the immovable  property, these are plot  numbers 3762, 3763  and 3792.  The first two  plots  are registered in the name of the 11th defendant while the  latter plot is in the  name of the first defendant.  The  three plots are all situated  in an area known as Mang’elete  Settlement Scheme in Kibwezi.

38. The immovable  properties  constitute money in bank accounts and two motor vehicles. The second plaintiff avers that he is the founder of the 11th defendant and contends that the first defendant was the interim  trustee while  the rest of the  plaintiffs were the beneficiaries of the  11th  defendant.

39. The  plaintiffs’ claim is based on breach fiduciary  duty by the  first  to the  sixth  defendants.  In my view, this  suit will turn on the following  two questions.

I. How  and with what funds were the properties acquired?

II. Did  the relationship between the second plaintiff and the first defendant create an implied trust?

Acquisition of the Properties

40. The  second plaintiff produced a bundle  of bank transfer document as PEX No. 2 showing the transfer of funds from him to the first defendant.  The  transfer  of funds  would be followed by email  communication from the second plaintiff giving  directions to the first defendant on how the money would be spent.

41. I will  highlight  some  of the extracts of the email conversations  for ease of reference:-

a. At page 152 there is an email of 12th January, 2006 where the second plaintiff writes to the first defendant as follows:-

“Today I will send money for the construction you asked for the start for around a quarter  of the money  8000 (euros) plus … total 9. 095(euros)”

b. At  page 158, there  is an email of  5th  September, 2005 where  the first  plaintiff gives directions on how the money will be spent on fencing

“the fencing  for the land bought for the home”

c. At page 222  there is bank transfer of Kshs. 3,500 euros  dated  22nd December, 2006 indicating  the purpose  for which the money was sent under the column

“details of payment” which is for “ equipment children  home and water  hole”

d. At page  227 there is bank transfer for the purpose of

“Construction”the same was sent on the 29th May, 2006 for 15,000 euros.

e. At page 230 there is bank  transfer for “ construction”  where 8000 euros was sent to  the first defendant  on the 28th March, 2006. Evidence  was also  adduced  to show the first defendant’s  response to  the emails written to him by the second  plaintiff.

f. At  page  146 of the  same exhibits  2, there is an email of  20th June, 2006 where the first   defendant gives a report of how the money sent by the second plaintiff was spent.  There is  quotation form attached  showing  the  items  purchased  and the total expenditure. The  same is titled  “quotation form for Mang’elete children’s  home( Hill side Mtito Andei)

g. At pages  150 and 151 there is an email of 8th March,  2006 where the first defendant  reports that he  has embarked  on the duty of “building  the home”

From the material placed before  me,  there  is evidence  to show that the second plaintiff brought  on board other donors.  at page 143 of PEX No.2 the second plaintiff  wrote to the first  defendant   via email that “I will send you  the addresses of two new sponsors soon”  at pages 141 and 142 he also writes that  he will get sponsors for the children.

h. At page  143 of PEX N.2 the second  plaintiff  wrote to the first defendant via email that, “ I will  send you the addresses of two new sponsors  soon”.  At pages 141 and 142 he also writes that he will get sponsors  for the children.

i. At pages 153 to  158  the email of 5th September, 2005 shows  the list of sponsors  that the   second  plaintiff sent.

42. In  paragraph 9  of their defence ,  there is an admission  that International Federation of the Blue Cross(IFBC)  was a donor  of the 11th defendant.

43. In his statement of defence, the first   defendant denied   that IFBC was brought  on board by the second  plaintiff  but in his  evidence  in court, the first defendant  confirmed  that he knew the second plaintiff  as the chairman of IFBC.  The first defendant further  confirmed  that he had never  received  money from any official of IFBC other than  the  second  plaintiff but this seems to be an afterthought on his  part.

44. From  the evidence  on record, it is   apparent that  the three  (3) plots i.e 3762,  3763 and 3792  were  purchased   during the time when  the second  plaintiff and the first defendant were on communication. Plot number 3762 was  purchased from one Timothy Mutuku Matenge  between 2005 and  2008, while  plot  numbers  3763 and 3792 were purchased from  one  Peter  Kyama. Plot   number  3763 was registered in the name  of the 11th defendant  while plot  number was registered  in the name of the first defendant.  The plaintiffs contend that the latter plot  was purchased using   funds provided  by the second plaintiff even  though the second  defendant registered  it in his name which the plaintiffs say was contrary  to their  intention.

Implied  trust

45. The  plaintiffs contend that what existed between the second  plaintiff  and the first defendant was an implied trust.

46. The plaintiffs have referred  the Court to Snells, Equity, 13th Edition, Sweet & Maxwell, chapter where it is stated that trusts can be created  expressly but   can also be created informally  or be implied.   One of the recognized categories of this form of trust is where one person purchases  a property but the same is conveyed in the name of someone other than the purchaser.

47. In the case of Dyer Vs Dyer [1788] 28 Cox  Eq, 92 at 93 (quoted in Snells, Equilty, Supra, page 206) it was stated  as follows:-

“The clear result of all the cases , without a single exception , is, that  the trust of a legal estate, whether  freehold, copyhold, or leasehold; whether  taken in the names if others  without that of the purchaser; whether  in one name or several , whether  jointly or successive, results to the man who advances  the purchase money.  This is a general proposition supported by all the cases , and there is nothing  to contradict it; and it goes on a strict analogy to the rule of common law that where a feoffment  is made without consideration, the use results to feoffer.”

48. In the case of Twalib Halayan Twalib Hayatan & Another  Vs Said Saggas Ahmed Al-Hady & Others [2015] eKLR, the Court of Appeal sitting  in Mombasa (A. Makhandia, William Ouko & Kathurima M’inoti JJA) stated  the  law  of trust as follows:-

“According  to Black’s Law  Dictionary, 9th  Edition; a trust  is defined as

“ 1. The right, enforceable  solely in equity, to the beneficial enjoyment  of property  to which another holds legal title; a property interest held by one person (trustee) at the request of another (settlor) for the benefit  of a third party  (beneficiary).”

Under the Trustee Act ,“ … the expressions  “trust” and “trustee” extend  to implied  and  constructive trust, and cases where the trustee has a beneficial interest in the trust  property ….”

In  the absence  of an express  trust, we have  trusts created  by operation of the law.  These fall within two categories; constructive and resulting trusts. Given that the two are closely  interlinked,  it is perhaps pertinent to look at each of them in relation to the matter at hand.

A constructive trust is an equitable  remedy imposed  by the court against one who has acquired property by wrong  doing….It  arises  where the intention of the parties cannot be ascertained.  If  the circumstances  of the case are such as would demand that equity treats the  legal owner as a trustee, the law will impose a trust.

A constructive trust will thus automatically  arise where a person who is already a  trustee takes  advantage of his position  for his  own  benefit(see Halsbury’s Laws  of England Supra at Para 1453).  As  earlier stated, with  constructive trusts, proof of parties’ intention is immaterial; for the  trust will nonetheless be imposed  by the law  for the benefit  of the settlor. Imposition  of a constructive  trust is  thus meant to guard against unjust enrichment  …..

A resulting  trust  is a remedy imposed  by equity where property is transferred  under  circumstances which suggest that the transferor  did not intend  to confer  a beneficial interest upon the transferee…This  trust  may arise either upon the unexpressed  but presumed intention of the settlor or upon  his  informally expressed  intention. (see Snells’s Equity 29th Edn, Sweet & Maxwell p. 175). Therefore, unlike  constructive trusts where unknown intentions may be left unexplored, with resulting trusts,  courts will readily look at the circumstances  of the case and presume or infer the  transferor’s intention.  Most  importantly, the general rule here is that a resulting  trust will automatically arise in favour of the person who advances  the purchase  money. Whether  or not the property is registered  in his name or that of another , is immaterial (See Snell’s Equity at P.177).”(emphasis  added ).

49. From the evidence on record, it is clear that the purchase money was either advanced by the second plaintiff or through his efforts.  The defendants and more particularly the first defendant  has admitted that he received funding from the second plaintiff.  In my view, there was an implied trust between the second plaintiff and the first defendant.  It follows therefore  that plot number  3792 which  was registered  in the first defendant’s name is being  held by him subject to trust.

50. This  position is expressly provided for in section 25 of the Land Registration Act No. 3 of 2012 where it provides as follows:-

“ The rights of proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated  except as provided  for  in this Act, and shall be held by the proprietor, together  with all privilege  and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject:-

a. To the leases, charges and encumbrances and to the conditions and restrictions, if any show in the register, and

b. To such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting  on the  register, unless the contrary is expressed  in the register.

(2) Nothing  in this section shall be taken to relieve a proprietor from any duty on obligation to which the person is subject to as a trustee.(emphasis are mine)

51. As for  the  control and management   of the  11th defendant , there  is evidence to show  this is an issue that is being litigated in another forum and more specifically in Nairobi HCCC No.  77 of 2017. The parties in the said suit are the first, second and third defendants herein versus Martin Mischrick and four(4) others.

52. It is up to  the  plaintiffs  decide as to whether  or not they  will file their own suit.  As such I hold that prayers  (e) , (f), (g) and  (i) cannot   be granted.

53. For  the reasons that I have given, all indications  from the evidence on record  point to a resulting  trust that arose between the  second  plaintiff and the first defendant. In my view, the defendants and particularly the first defendant  should  not be allowed to derive personal benefits from projects that were intended to benefit the less  fortunate  in the society. As such, I am satisfied that the plaintiffs have on a balance of probabilities a cause of action against  the 1st, 2nd, 3rd , 4th , 5th, 6th, 7th, 9th, 10th, and 11th defendants. I, therefore, proceed to enter judgment for the plaintiffs and against the aforementioned defendants  jointly and severally in terms of prayers (a) , (b),  (c), (d) (h) and (k) of the plaint. It is so ordered.

Signed , dated and delivered at Makueni at this 20th  day of  June, 2018.

MBOGO C.G

JUDGE

IN THE PRESENCE OF ;

Mr. Musesya for  the plaintiffs.

Ms Kwang’a holding brief for Mr. Anzala  for the 1st  to 6th and 11th  defendants .

Mr. Kwemboi   Court Assistant

MBOGO C.G, JUDGE

20/6/2018