[2007] KEHC 2646 (KLR)

[2007] KEHC 2646 (KLR)

The court found that the plaintiff had proved, on a balance of probabilities, that the defendant was registered as owner of the suit property as trustee for the plaintiff. The evidence showed that the registration in the defendant's name was not intended to confer absolute beneficial ownership, but rather to hold the property for the benefit of the family, consistent with the wishes of their late father. However, the property was subject to a charge in favour of the Agricultural Finance Corporation, and the court could not order subdivision or transfer until evidence was produced that the charge had been discharged. Accordingly, the court granted a preliminary decree declaring the...

Citation
[2007] KEHC 2646 (KLR)
Parties
Plaintiff: Edward Muthee Gitimo; Defendant: Joseph Mathenge Gitimu
Court
High Court
Court Station
High Court at Nyeri
Jurisdiction
Kenya
Judgment Date
20 July 2007
Case Number
Civil Case 367 of 1993
Procedural Posture
Civil Case / Formal Proof; Interlocutory Judgment Entered for Non Appearance of Defendant
Outcome
Preliminary decree granted declaring defendant holds property in trust for plaintiff; final orders on subdivision and costs deferred.
Legal Topics
Trusts in Land, Family Land Disputes, Registration of Title
Source Language
English
Land and Property Trusts in Land Family Land Disputes Registration of Title

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Parties

Edward Muthee Gitimo

Plaintiff

Joseph Mathenge Gitimu

Defendant

Procedural Posture

Civil Case / Formal Proof; Interlocutory Judgment Entered for Non Appearance of Defendant

Legal Issues

  1. 1 Whether the defendant holds property MAGUTU/GAIKUYU/326 as trustee for the plaintiff.
  2. 2 Whether the plaintiff is entitled to subdivision of the suit property as per the alleged wishes of their deceased father.
  3. 3 Whether judgment for subdivision can be entered in light of the existing charge in favour of Agricultural Finance Corporation.

Ratio Decidendi

The court found that the plaintiff had proved, on a balance of probabilities, that the defendant was registered as owner of the suit property as trustee for the plaintiff. The evidence showed that the registration in the defendant's name was not intended to confer absolute beneficial ownership, but rather to hold the property for the benefit of the family, consistent with the wishes of their late father. However, the property was subject to a charge in favour of the Agricultural Finance Corporation, and the court could not order subdivision or transfer until evidence was produced that the charge had been discharged. Accordingly, the court granted a preliminary decree declaring the...

Court Disposition

Preliminary decree granted declaring defendant holds property in trust for plaintiff; final orders on subdivision and costs deferred.

Orders

  • Preliminary decree that the defendant holds property MAGUTU/GAIKUYU/326 in trust for the plaintiff.
  • Final judgment on subdivision and costs to await evidence of discharge of charge by Agricultural Finance Corporation.