Joseph Mwangi Recho & Elizabeth Wambui v Francis Gichiri Ndua, Land Registrar Thika District & Susan Njeri Mwangi [2020] KEELC 1148 (KLR) | Constructive Trust | Esheria

Joseph Mwangi Recho & Elizabeth Wambui v Francis Gichiri Ndua, Land Registrar Thika District & Susan Njeri Mwangi [2020] KEELC 1148 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC SUIT  NO. 71  OF 2011

JOSEPH MWANGI RECHO.......................................................................1ST PLAINTIFF

ELIZABETH WAMBUI...............................................................................2ND PLAINTIFF

VERSUS

FRANCIS GICHIRI NDUA......................................................................1ST DEFENDANT

THE LAND REGISTRAR THIKA DISTRICT.......................................2ND DEFENDANT

SUSAN NJERI MWANGI..........................................................................3RD DEFENDANT

JUDGMENT

1. The plaintiffs and the 3rd defendant are siblings. Their mother was called Wairimu Mwambia. The plaintiffs and the 3rd defendant had other siblings namely, David Karanja, John Kimani and Hannah Wanjiku. The plaintiffs and the 3rd defendant’s mother, Wairimu Mwambia was the daughter of Joseph Mwambia and Njeri Mwambia both deceased. The parcel of land known as Ngenda/Kimunyu/584(hereinafter referred to as “Plot No. 584”) was registered in the name of Joseph Mwambia on first registration on 3rd January, 1958. Plot No. 584 measured 12. 40 acres (approximately 5. 018hectares). After the death of Joseph Mwambia, Plot No. 584 was registered in the name of his wife, Njeri Mwambia who was the grand-mother of the plaintiffs and the 3rd defendant on 21st October, 1960. A part from the plaintiffs’ and the 3rd defendant’s mother, Njeri Mwambia and Joseph Mwambia had other children namely, Karanja Mwambia, Daniel Kihiu Mwambia, George Mburu Mwambia, Kuria Mwambia and Wachu Mwambia.

2. On 19th February, 1976, Njeri Mwambia transferred Plot No. 584 to her name and the names of her three sons, Daniel Kihiu Mwambia, George Mburu Mwambia and Solomon Kuria Mwambia as tenants in common in different shares. In this distribution of ancestral land, Njeri Mwambia left out her daughters, Wairimu Mwambia (the plaintiffs and the 3rd defendant’s mother) and Wachu Mwambia. Also left out was the wife of one of her sons, Karanja Mwambia by the name Margaret Wanjiku Karanja.  Wachu Mwambia and Margaret Wanjiku Karanja objected to the distribution of Plot No. 584 and registered cautions against the title of the property. Njeri Mwambia together with her sons and daughters who included Wacu Mwambia and the plaintiffs’ and the 3rd defendant’s mother, Wairimu Mwambia subsequently agreed on the distribution of Plot No. 584 which agreement led to the withdrawal of the cautions aforesaid.

3. Following that agreement, Plot No. 584 was distributed a fresh on 8th March, 1983 when all the children of Njeri Mwambia and Joseph Mwambia were given portions of the said plot. As at this date, the plaintiffs’ and the 3rd defendant’s mother, Wairimu Mwambia was deceased. The portion of Plot No. 584 that belonged to Wairimu Mwambia was registered in the name of Elizabeth Wachu Mwambia as a trustee of Wairimu Mwambia’s eldest daughter, Susan Njeri, the 3rd defendant herein. On 28th March, 1983, Plot No. 584 was partitioned so that each of Njeri Mwambia’s and Joseph Mwambia’s children could have separate titles for their portions of the said parcel of land. The partitioning of Plot No. 584 gave rise to Ngenda/Kimunyu/1192 to 1197. The portion of land that was held by Elizabeth Wachu Mwambia as a trustee of Wairimu Mwambia’s eldest daughter, Susan Njeri, the 3rd defendant herein was given title number Ngenda/Kimunyu/1195 and the same was registered in the name of Susan Njeri Mwangi, the 3rd defendant herein. Ngenda/Kimunyu/1195 (hereinafter referred to as “the suit property”) measured 0. 53 acres.

4. Sometimes in January, 2000, the 3rd defendant sold the suit property to the 1st defendant at a price of Kshs. 750,000/-. The suit property was subsequently registered in the name of the 1st defendant on 24th January, 2001 on which date the 1st defendant was also issued with a title deed under the Registered Land Act, Chapter 300 Laws of Kenya (now repealed).

5. The plaintiffs brought this suit against the 1st and 2nd defendants on 22nd February, 2011 through a plaint dated 21st February, 2011. The plaint was amended on 25th September, 2014 to join the 3rd defendant as a party to the suit. In the amended plaint dated 25th September, 2014, the plaintiffs averred that the parcel of land known as Ngenda/Kimunyu/1195(the suit property) was registered in the name of the 3rd defendant to hold as a trustee for the children of Wairimu Mwambia who included the plaintiffs and their siblings namely, David Karanja (a person of unsound mind), John Kimani(deceased) and Hannah Wanjiku(deceased). The plaintiffs averred that when the 2nd defendant registered the suit property in the name of the 3rd defendant absolutely, the 2nd defendant failed to take into consideration the interest of the plaintiffs and their siblings aforesaid.

6. The plaintiffs averred that the registration of the 3rd defendant as the absolute owner of the suit property was without the consent of the plaintiffs and as such null and void. The plaintiffs averred that in 2001, the 3rd defendant fraudulently represented that she was the absolute proprietor of the suit property and proceeded to illegally sell the property to the 1st defendant before she left the country to unknown destination. The plaintiffs averred that the sale of the suit property by the 3rd defendant to the 1st defendant was unlawful, null and void since the 3rd defendant had no capacity in law to sell and transfer the property.  The plaintiffs averred that the registration of the 3rd defendant as the absolute owner of the suit property and the subsequent transfer of the property by the 3rd defendant to the 1st defendant was fraudulent and made recklessly in bad faith.

7. The plaintiffs averred that the 1st defendant purchased the suit property from the 3rd defendant with the full knowledge that the 3rd defendant was holding the suit property in trust for her siblings and that she was not the absolute owner of the property. The plaintiffs averred that by reason of the matters aforesaid, the plaintiffs and their siblings had been wrongfully deprived of the ownership and quiet enjoyment of the suit property.

8. The plaintiffs sought judgment against the defendants jointly and severally for;

(a) A declaration that the 3rd defendant held the parcel of land known as Ngenda/Kimunyu/ 1195(the suit property) in trust for the plaintiffs.

(b) A permanent injunction restraining the 1st defendant from selling, disposing of, transferring, charging, pledging, leasing, wasting or in any manner whatsoever or howsoever interfering with or dealing with the suit property.

(c) An order directing the Land Registrar to rectify the register of the suit property by cancelling the title held by the 1st defendant and all the entries in the register relating to the transfer of the property to the 1st defendant.

(d) An order directing the Land Registrar to re-issue a fresh title deed for the suit property in the names of the plaintiffs.

(e) Damages for trespass.

(f) Mesne profits.

(g) Costs of the suit.

(h) In the alternative, General damages against the 1st and 3rd defendants for wanton, unlawful and blatant disregard of the plaintiffs’ interest and rights under the law.

8. The 1st defendant filed a statement of defence dated 10th March, 2011 on 11th March, 2011 which was amended on 23rd October, 2014. In his amended statement of defence, the 1st defendant averred that he was registered as the absolute proprietor of the suit property which he acquired from the 3rd defendant free from any encumbrance. The 1st defendant averred that the 3rd defendant presented herself as the proprietor of the suit property and that at no time prior to and during the transaction did the 3rd defendant indicate that she was a trustee of the plaintiffs or any other person in respect of the suit property. The 1st defendant averred further that there was no record of the alleged trust. The 1st defendant denied that the sale of the suit property by the 3rd defendant to the 1st defendant was unlawful and fraudulent. The 1st defendant averred that the plaintiffs had approached the 1st defendant to sell the suit property to them and as such the plaintiffs were estopped from claiming that the property was held in trust for them by the 3rd defendant. The 1st defendant averred further that the plaintiffs were not entitled to the reliefs sought in the plaint for the following reasons; first, the plaintiffs had approached the court with unclean hands; secondly, the 1st defendant acquired the suit property lawfully; thirdly, the 3rd defendant was not registered in the register of the suit property as holding the suit property as a trustee and finally, the plaintiffs’ remedy if any lied against the 3rd defendant.

9. The 2nd defendant filed its statement of defence on 24th August, 2011 in which he denied the plaintiffs’ claim in its entirety. The 2nd defendant averred that as the registered proprietor of the suit property, the 3rd defendant had the capacity to transfer the suit property to the 1st defendant. The 2nd defendant averred that the plaintiffs had no valid claim to the suit property. The 2nd defendant averred without prejudice that all the entries that were made on the register of the suit property were made in good faith pursuant to the statutory duties and obligations bestowed upon the 2nd defendant. The 2nd defendant denied that he was involved in any wrong doing in relation to the suit property and contended that the plaintiffs had failed to establish the existence of trust on which their case was based.

10. At the trial, the plaintiffs called three witnesses while the 1st and 2nd   defendants called one witness each. The 3rd defendant who did not enter appearance did not call any witness. The plaintiffs’ first witness was the 1st plaintiff, Joseph Mwangi Recho (PW1). The 1st plaintiff adopted his witness statement dated 18th March, 2015 as his evidence in chief. The 1st plaintiff also gave oral testimony and produced a number of documents as exhibits. In his statement and oral testimony, the 1st plaintiff narrated the genesis of the dispute between the parties that I have captured at length at the beginning of this judgment. It is not necessary to repeat the same here.

11.  In his oral testimony, the 1st plaintiff stated as follows: The suit property was sold and transferred by the 3rd defendant to the 1st defendant without the knowledge of the plaintiffs.  The 3rd defendant had no right to sell the suit property since the suit property was family property that belonged to the plaintiffs and the 3rd defendant’s mother, Wairimu Mwambia. The suit property was given to their mother by their maternal grandmother, Njeri Mwambia. When the original parcel of land namely, Plot No. 584 from which the suit property originated was being distributed by Njeri Mwambia, the plaintiffs were young and it was feared that they could dispose of their mother’s share of the property. The share of Plot No. 584 that belonged to the plaintiffs and the 3rd defendant’s mother, Wairimu Mwambia was registered in the name of their aunt, Elizabeth Wachu to hold in trust for the 3rd defendant who was the plaintiffs’ eldest sister. Since the plaintiffs were young and immature, it was felt that the suit property was safe with the 3rd defendant. The 3rd defendant was to hold the suit property in trust for the plaintiffs and their other siblings. He had put up a house on the suit property that was demolished on 6th February, 2001 by the 1st defendant after the 3rd defendant sold the suit property to the 1st defendant.

12.  He stated further that, their elder brother was buried on the suit property and that they were not aware that the title deed for the suit property had been issued to the 3rd defendant. It was after his (PW1) house was demolished that they learnt that the suit property had been sold to the 1st defendant. When the 1st defendant was purchasing the suit property he was aware that the property belonged to their mother, Wairimu Mwambia and that the same did not belong to the 3rd defendant. As at the time the 1st defendant was purchasing the suit property, his (PW1) house was standing thereon. There was also their elder brother’s grave on the property which the 1st defendant must have seen. PW1 urged the court to grant to the plaintiffs the reliefs sought in the plaint.

13. The plaintiffs’ second witness was Margaret Wanjiru Karanja (PW2). PW2 was the wife of Peter Karanja Mwambia. Njeri Mwambia was her mother in- law. PW2 told the court that during the distribution of the family land by Njeri Mwambia, her husband was given a portion of that land.  She stated that Elizabeth Wacu was given a portion of that land to hold in trust for the 3rd defendant. She stated that the portion of land that was given to Elizabeth Wacu to hold in trust for the 3rd defendant (the suit property) belonged to all the children of Wairimu Mwambia who was deceased by then. PW2 told the court that the 3rd defendant had no right to sell the suit property. PW2 corroborated PW1’s evidence that the suit property had a house belonging to PW1 standing on it and a grave when it was sold by the 3rd defendant to the 1st defendant.

14.  The last to give evidence for the plaintiffs was the 2nd plaintiff, Margaret Wambui Macharia (PW3). PW3 adopted her witness statement dated 18th March, 2015 as her evidence in chief. In her witness statement, PW3 stated that she was a daughter of Wairimu Mwambia and that a part from the 1st plaintiff and the 3rd defendant, her other siblings were; David Karanja, John Kimani and Hannah Wanjiku. She stated that their mother, Wairimu Mwambia died before their grandmother, Njeri Mwambia could distribute the land that their mother and her siblings had inherited from their father. She stated that since their mother was deceased, the portion of family land that she was entitled to (the suit property) was given to her children which included herself, the 1st plaintiff, the 3rd defendant and their other siblings. PW3 stated that an agreement was reached that the 3rd defendant who was their eldest sister was to hold the suit property in trust for PW3 and her siblings mentioned above. PW3 stated that the 3rd defendant did not own the suit property absolutely and as such she had no capacity to sell the same.

15. The 2nd defendant called Joseph Wangombe Kamuyu(DW1) as his witness. DW1 was a former land registrar at Gatundu Land Registry. He gave the court the history of the suit property more particularly how it was created from Plot No. 584. DW1 stated that according to the records held at the Land Registry, the suit property was registered in the name of the 1st defendant as the owner thereof and that the 1st defendant acquired the property from the 3rd defendant on 24th January, 2001. He stated that there was no way the land registrar could have known that the 3rd defendant held the suit property as a trustee for the plaintiffs. He stated that it was the responsibility of the 3rd defendant to tell the land registrar that she was holding the property in trust. He stated that the 3rd defendant was registered as the absolute owner of the suit property.

16.  The 1st defendant was the last to give evidence.  The 1st defendant, Francis Gichiri Ndua (DW2) adopted his witness statement dated 10th March, 2011 as his evidence in chief. He also gave oral testimony and produced a number of documents as exhibits. In his testimony, he stated as follows: He purchased the suit property from the 3rd defendant in 2001. The sale was approved by the Land Control Board after which the suit property was transferred to his name. After he was issued with a title deed, he occupied the suit property peacefully from 2001 until 2010 when he was approached through his brother by the relatives of the 3rd defendant with a proposal that he sells the suit property to them. He told them that the suit property was not on sale after which the plaintiffs served him with a demand letter and subsequently filed this suit. DW2 told the court that there was nothing in the title that was held by the 3rd defendant showing that she was holding the suit property in trust. He stated that he was not aware of the plaintiffs until they brought the present suit. DW2 urged the court to dismiss the plaintiffs’ suit.

17.  After the conclusion of the evidence, the parties made closing submissions in writing. The plaintiffs filed their submissions on 3rd May, 2019 while the 1st defendant filed his submissions on 28th January, 2020.  The 2nd defendant filed his submissions on 23rd January, 2020. I have considered the evidence on record and the submissions by the parties’ advocates.  The parties did not frame and file in court a statement of agreed issues. In their submissions, each party framed its own set of issues for determination by the court. From the pleadings, the following in my view are the issues that arise for determination in the suit before the court:

a) Whether the 3rd defendant held the suit property in trust for the plaintiffs.

b) Whether the sale of the suit property by the 3rd defendant to the 1st defendant was carried out in breach of the said trust.

c) Whether the 1st defendant had notice of the plaintiffs’ interest in the suit property while purchasing the same.

d) Whether the plaintiffs are entitled to the reliefs sought in the amended plaint.

e) Who is liable for the costs of the suit?

Whether the 3rd defendant held the suit property in trust for the plaintiffs and whether the sale of the suit property to 3rd defendant was in breach of the said trust.

18. The suit property was registered under the Registered Land Act, Chapter 300 Laws of Kenya (now repealed). The 3rd defendant did not enter appearance. All the averments contained in the amended plaint against the 3rd defendant more particularly that she held the suit property in trust were therefore not controverted.  The 1st and 2nd defendants on the other hand contended that there was nothing in the register of the suit property or in the title that was held by the 3rd defendant showing that the 3rd defendant held the suit property in trust for the plaintiffs or anyone else.  I am in agreement with the submissions by the 1st and 2nd defendants that the registration of the 3rd defendant as the proprietor of the suit property conferred upon the 3rd defendant absolute ownership of the suit property together with all the rights and privileges associated with such ownership and that such rights were not liable to be defeated save as was provided in the Registered Land Act, Chapter 300 Laws of Kenya (now repealed).

20. That legal position is anchored on sections 27 and 28 of the Registered Land Act cited by the 1st defendant in his submissions. See also sections 24 and 25 of the Land Registration Act, 2012 cited by the 2nd defendant in his submissions.  There is however a proviso in section 28 of the Registered Land Act which provides that the rights of a proprietor of land set out above are subject to any duty or obligation such proprietor may have as a trustee.  In Kanyiv Muthiora [1984] KLR 712, Chesoni, Ag J.A stated as follows at page 723:

“Section 143 of the Registered Land Act did not apply as there was no question of rectification of the register but a transfer by a trustee to a beneficial owner.  The registration of the suit land in the name of Kanyi under the Registered Land Act did not extinguish Nyokabi’s rights under Kikuyu customary law.  Kanyi was not relieved from her duty or obligation to which she was a trustee to Mathiora’s land: see proviso to section 28 of the Act and Gatimu Kinguru –vs- Muya Gathangi [1976] KLR 253.  There was overwhelming evidence of a trust in favour of Nyokabi.”

In John Gitiba Buruna & Another v Jackson Rioba Buruna, Court of Appeal at Kisumu, Civil Appeal No. 89 of 2003, the court stated as follows:

“Although the rights of a registered proprietor of land are indefeasible under section 28 of the Registered Land act, such registration does not as the proviso to section 28 states relieve a proprietor from any duty or obligation to which he is subject as a trustee.”

21. It is clear from the foregoing cases that the 3rd defendant’s title over the suit property could be impeached on account of any duty that she owed as a trustee to the plaintiffs. In  Mwangi Mbothu & 9 others v Gachira Waitimu & 9 Others [1986] eKLR, the court stated that:

“The law never implies, the court never presumes a trust but in case of absolute necessity. The court will not imply a trust save in order to give effect to the intention of the parties. The intention of the parties to create trust must be clearly determined before a trust will be implied.”

22.  I am satisfied from the totality of the evidence placed before the court that the plaintiffs have proved the existence of a trust relationship between them and the 3rd defendant in relation to the suit property.  In NjengaChogera v Maria Wanjira Kimani & 2 Others [2005] eKLR, the Court of Appeal stated as follows on proof of trust:

“It was argued on behalf of the appellant that there was no sufficient evidence to prove customary law trust.  On our own re-evaluation of the evidence we are satisfied that there was amble evidence of the history of the suit land and of the relevant customary law on which the learned judge could find as he did.”

23. In Juletabi African Adventure Limited & another v Christopher Michael Lockley [2017] eKLR, the Court of Appeal stated as follows when dealing with a case similar to the one before this court:

“ 27. In Twalib Hatayan Twalib Hatayan & Anor vs. Said Saggar Ahmed Al-Heidy & Others [2015] eKLR,this Court examined and stated the law on trusts as follows:

“According to the 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 Snell’s Equity 29th Edn, Sweet & Maxwell p.175).  Therefore, unlike constructive trusts where unknown intentions maybe 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) (supra).”Emphasis added

28. Applying the emphasized principles to the case before us, all indications are that a resulting trust arose as between the respondent and the 1st appellant.  As stated in the authority above, 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.  It is common ground that all the purchase money for both the vehicle and the parcel was advanced by the respondent.  The parcel and vehicle were therefore held in trust for the respondent by the 1st appellant. See alsoCharles K. Kandie vs. Mary Kimoi Sang [2017] eKLR.”

24. From the history of the suit property as given in evidence by the plaintiffs, I am persuaded that a constructive trust a rose between the 3rd defendant and the plaintiffs in relation to the suit property. It was not disputed that the suit property was a subdivision of Plot No. 584. Plot No. 584 was owned by the plaintiffs’ and the 3rd defendant’s maternal grandfather, Joseph Mwambia. After the death of the plaintiffs’ and the 3rd defendant’s said maternal grandfather, Plot No. 584 was inherited by their maternal grandmother, Njeri Mwambia. It was not disputed that the children of the plaintiffs’ and the 3rd defendant’s maternal grandmother which included the plaintiffs’ and the 3rd defendant’s mother, Wairimu Mwambia   agreed on the distribution of Plot No. 584. When the time came for that agreement to be executed, the plaintiffs’ and the 3rd defendant’s mother had already passed on. Each of the children of the plaintiffs’ and the 3rd defendant’s maternal grandmother were allocated portions of Plot No. 584 in accordance with the agreement that they had reached. The 3rd defendant was the plaintiffs’ eldest sister. During the distribution of Plot No. 584 as a foresaid, one of the plaintiffs’ and the 3rd defendant’s aunts, Elizabeth Wachu was allocated a portion of Plot No. 584 to hold as a trustee of the 3rd defendant. The plaintiffs have contended that that portion of Plot No. 584 was the inheritance of their mother who was deceased as at the time of the distribution of Plot No. 584 and that the 3rd defendant being the eldest child was to hold the same in trust for her siblings. After the allocation of Plot No. 584 as aforesaid, the said plot was partitioned so that each beneficiary could have a separate title. The portion of Plot No. 584 that was held by Elizabeth Wachu in trust for the 3rd defendant was given land title number Ngenda/Kimunyu/1195(the suit property) and registered in the name of the 3rd defendant. I am in agreement with the plaintiffs that although the suit property was registered in the name of the 3rd defendant as the absolute owner thereof, the 3rd defendant remained a trustee of the said parcel of land. The 3rd defendant was not a child of Joseph Mwambia and Njeri Mwambia and as such was not entitled to inherit land from them. The land that was registered in the name of the 3rd defendant belonged to her deceased mother and as such she held the same in trust for herself and her siblings which included the plaintiffs.  I am satisfied from the circumstances under which the suit property was registered in the name of the 3rd defendant that a constructive trust was created in favour of the plaintiffs in relation thereto. The fact that the 1st plaintiff had a house on the suit property and that one of the plaintiffs’ and the 3rd defendant’s brothers was buried on the suit property reinforces the plaintiffs’ argument that the suit property was family land held in trust by the 3rd defendant for her siblings.  It is my finding that the 3rd defendant held the suit property in trust for the plaintiffs and as such she could not deal with the property without the consent of the plaintiffs. It follows therefore that the sale of the suit property to 1st defendant without the consent of the plaintiffs was carried out by the 3rd defendant in breach of trust.

Whether the 1st and 2nd defendants had notice of the plaintiffs’ interest in the suit property when the 1st defendant purchased the same.

25. In Muthuita v Wanoe[1982] KLR 166 at pages 169 and 170,Potter J.Astated that:

“In Gatimu Kinguru v. Muya Gathangi [1976] KLR 253 Madan J(as he then was) held that the absence of any reference to a trust in the instrument of acquisition of the land does not affect the enforceability of the trust as the provisions of section 126(1) of the Registered Land Act as to the reference to the capacity as trustee in the instrument of the acquisition are not mandatory but merely permissive. That decision has been followed and in my respectful opinion it is correct. ……….. In the High Court the learned judge correctly directed himself as to the functions of a first appellate court and as to the relevant provisions of the Registered Land Act, and having carefully reviewed the evidence, found that the appellant was registered as proprietor of the suit premises as trustee for himself and the three plaintiffs. In my view there was amble evidence of the history of the suit land and of the relevant customary law on which the learned judge could find as he did. With respect I agree with the learned judge.”

26. It was not necessary for the plaintiffs’ interest in the suit property as beneficiaries of a trust to be noted in the register of the suit property. The fact that the 1st defendant’s search on the register of the suit property did not reveal the existence of a trust cannot therefore defeat the plaintiffs’ interest in the suit property that was sold to the 1st defendant. The 1st defendant admitted in evidence that the suit property is situated in the village where he was born.  I am of the view that if the 1st defendant had carried out adequate due diligence, he would have been given the history of the suit property from which he would have learnt that the 3rd defendant was a trustee of the suit property. The defence of innocent purchaser for value without notice is therefore not available to the 1st defendant.

Whether the plaintiffs are entitled to the reliefs sought in the amended plaint.

27. The 2nd defendant had contended in his submission that the plaintiff’s suit was time barred. I did not frame this as one of the issues for determination by the court intentionally. This was because the issue was not raised in the parties’ pleadings. In any event, I find no basis for the contention. From the evidence on record, the suit property was transferred to the 1st defendant in breach of trust on 24th January, 2001 while this suit was filed on 22nd February, 2011. The suit was in my view filed within the 12 years’ limitation period for the recovery of land.

28. I am satisfied that the plaintiffs have proved their case against the defendants on a balance of probabilities. The plaintiffs sought several reliefs that I have set out at the beginning of this judgment. From the findings I have made above, the plaintiffs are entitled to prayers (a) to (c) in the amended plaint. With regard to prayer (d), I am of the view that the same cannot be granted in the manner it is framed. I am of the view that the property should remain in the name of the 3rd defendant who is one of the beneficiaries thereof but with a rider that she is holding the same as a trustee for the children of Wairimu Mwambia. The plaintiffs are at liberty to file a separate suit for the dissolution of the trust and partitioning of the suit property. This suit was not brought for that purpose. The plaintiffs had also sought damages for trespass and mesne profits. In the circumstances of this case, I am not satisfied that trespass was established against the 1st defendant. With regard to mesne profits, no evidence was placed before the court in support of the claim. I also find the alternative prayer not proved.

Who is liable for the costs of the suit?

29. As was stated in the case of Jasbir Singh Rai & Others v Tarlochan Singh Rai and 4 others [2014 ]eKLR, costs follow the event. In this case, the plaintiffs have succeeded in their claim against the defendants. No reason has been put forward by the defendants to warrant a departure from the general rule on costs. The plaintiffs shall have the costs of the suit.

Conclusion:

30. In conclusion, I hereby enter judgment for the plaintiffs against the defendants jointly and severally in terms of prayers (a), (b) and (c) of the amended plaint dated 22nd September, 2014. I also order that upon the rectification of the register for Ngenda/Kimunyu/1195 by cancellation of the name of the 1st defendant as the registered owner thereof and the title deed that was issue to him, the property shall revert to the name of the 3rd defendant but the 2nd defendant shall add the following words beside the name of the 3rd defendant in the register, “as a trustee for the children of Wairimu Mwambia”. The plaintiffs shall have the costs of the suit as against the 1st and 3rd defendants.

Delivered and DatedatNairobi this 24th day of September 2020

S. OKONG’O

JUDGE

Judgment read through Microsoft Teams Video Conferencing platform in the presence of;

Mr. Mburu for the plaintiffs

N/A for the 1st defendant

N/A for the 2nd defendant

N/A for the 3rd defendant

Ms. C. Nyokabi - Court Assistant