https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4990

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT KILGORIS** **ELC E012 OF 2023** **MISSION SOS INTERNATIONAL INCORPORATED…….……………………..PLAINTIFF** **-VERSUS-** **MISSION SOS AFRICA INC. …………………………………....….…….1ST DEFENDANT** **DISHON MBUGWA…………………………………………….………….2ND DEFENDANT** **GABRIEL G. CHARO……………………………………………………...3RD DEFENDANT** **MARGARET NABWOBA…………………………………………………..4TH DEFENDANT** **JUDGMENT** 1. This suit involves once closely related religious and/or charitable organisations that become estranged in the course of their dealings amid accusations of misrepresentation and fraud necessitating this suit, commenced by way of a Plaint dated 20th November 2023, in which the Plaintiff Mission SOS International Incorporated, sued the Defendants, Mission SOS Africa Inc., as 1st Defendant Dishon Mbogua, sued a s General Overseer as 2nd Defendant, Gabriel G. Charo, sued as the General Secretary, and Margaret Nabwoba sued as the General Treasurer in which the Plaintiff sought for the following reliefs against the Defendants for 2. A declaration that the plaintiff is the beneficial and legal owner of 3. Transmara/Oloiborsoito/554 4. Transmara/Oloiborsoito/596 5. Transmara/Oloiborsoito/774 6. Transmara/Oloiborsoito/813 and all the developments therein. 7. A declaration that the Defendants hold the suit properties in(a) above in Trust for the Plaintiff and/or its nominees. 8. An order directing the Defendants to transfer the following assets to another charitable organisation nominated by the plaintiff forthwith, failure to which the Deputy Registrar of this Honourable court do execute all necessary documents to effect the orders of this court. 9. Transmara/Oloiborsoito/554 10. Transmara/Oloiborsoito/596 11. Transmara/Oloiborsoito/774 12. Transmara/Oloiborsoito/813 and all the developments therein. 13. A permanent injunction be issued restraining the Defendants, their agents, servants or employees from entering, possessing, alienating, occupying, acquiring and/or fencing off or in any manner whatsoever interfering with the plaintiff’s quiet user and possession of Transmara/Oloiborsoito/554, Transmara/Oloiborsoito/596, Transmara/Oloiborsoito/774, Transmara/Oloiborsoito/813. 14. Costs of the suit. **Plaintiff’s case and evidence** 1. It is averred by the plaintiff in its Plaint, that in or about the year 2015 the founding Director of the 1st Defendant Society a Swedish/Kenyan Missionary One Vivian Mbugua and the 2nd Defendant her husband approached the Plaintiff’s International President Mr. Johannes Amritzer to support them take over their religious and charitable work in Kenya, an agreement was reached to change the leadership of the 1st Defendant so as to enable the plaintiff raise funds to set up a SOS Mission and Bible School in Kilgoris. 2. That the Plaintiff raised funds overseas and set up the Kilgoris SOS Adventure Mission Base, Church house to wit, Kilgoris SOS Church and SOS Mission and Bible School all located within Transmara/Oloiborsoito/596, Transmara/Oloiborsoito/554 and Transmara/Oloiborsoito/744, and a parking garage for vehicles was constructed on Transmara/Oloiborsoito/813. The said properties were however registered in the name of the trustees of the 1st Defendant Society to wit, Joseph Lerina Kiptek. Godfrey Sifuna Silivano Joseph Bwanamo Ole Mkasa Elizabeth Sauda 1. That the Plaintiff undertook heavy and extensive infrastructure developments on the suit properties including but not limited to the construction of a church building, construction of a modern catering and dining facility, construction of hostels and dormitories with a housing capacity of over 200 bible school students and Missionaries all totalling to over USD 1,500,000.00. 2. The Plaintiff purchase of the suit properties were as a result of fundraised through its International supporters. 3. The Plaintiff further avers that the 1st Defendant did not effect is resolution to include the Plaintiff’s nominees as its members at the Registrar of Societies, and blocked the inclusion of the Plaintiffs nominees as members of the 1st Defendant. 4. The Plaintiff further averred that its engagement with the Defendants created a legal Trust actions; and the Plaintiff pleaded particulars of the Defendants Breach of Trust and breach of fiduciary relationship, and in the alternative equally pleaded the particulars of the Defendant’s fraud, dishonesty and malice. 5. On the strength of the above the plaintiffs sought for reliefs set out at paragraphs 1 of this Judgment as against the Defendants jointly and severally. **Plaintiff’s evidence** 1. A total of 6 witness testified for the plaintiff. Their testimonies as captured in their witness statements as well as in oral testimony in court are very similar and the court shall summarise their evidence as well as the documentary evidence they produced. 2. P.W.1, Johannes Armitzer, the president of the plaintiff organisation testified and produced in court how the bundle of documents dated 20.11.2023 with a total of 31 documents, as P.Exhibit 1, the bundle of documents dated 04.07.2024 as P.Exhibit No. 2. The witness narrated to court how he was made to believe that he had been appointed to the Board as an Assistant Secretary General, of the 1st Defendant, by virtue of a letter dated 02.03.1997 signed by the General overseer of the 1st Defendant, a Mr. Samuel Ananda. 3. The witness further narrated how he was duped by the Defendants to believing that he was the chair of the 1st Defendant as per the minutes dated 5th December 2020. 4. Acting on the said belief, that he was a member of the 1st Defendants Board, the witness stated that he embarked on fundraising and a Bank account opened at Kilgoris where funds from the plaintiff were deposited with a view to purchasing of properties and building of the Bible school and a garage. 5. The funds were initially sent to the account of Mr. Joseph Kiptek before the church accounts were opened. The witness testified that $20,050 were transferred to the church account to purchase property that was registered in the name of Joseph Lerina Kiptek and the 1st Defendant. 6. The witness narrated to the court the statements of accounts from Kilgoris cooperative Bank both dollar Account and shilling Account, in which they were deposits of $3,735, 22,965, 813, 5,432, on various dates which were for construction. 7. The witness narrated other transfers of $15,445 and $77,963. 8. That despite funding the purchase of the suit properties, as well the construction on the suit properties the witness stated that he realised that he and his members had not been registered as official of the 1st Defendants at the Registrar of societies. 9. The witness stated that there was additional transfer by the plaintiff to the 1st Defendants Kenya Shillings Account held at Coop Bank Kilgoris, initially Kshs.840,366, then Kshs.2,353,248 and 5,130,943. Thus, the construction of the buildings was fully funded by the plaintiff; included the payments made directly to suppliers and contractors, including mahiri creations. 10. The witness stated that after demanding their inclusion to the Board of the 1st Defendant, Mr. Kiptek placed cautions on the suit properties and the plaintiffs officials were harassed by officers from DCI. 11. The witness requested the properties to be transferred to their nominee a local charitable organisation called Mission SOS Adventure Africa, a Company Limited by guarantee as well as for the injunctive prayers in the suit. 12. The witness was cross-examined, he stated that he did not know the documents he presented during Registration, and confirmed that the organisation was a non-profit making organisation. 13. P.W.2, P.W.3, P.W.4 and P.W.5 all adopted their respective witness statements, in which they stated that they had donated hundreds of thousands of us dollars to the plaintiff for purposes of carrying out Religious and Charitable work in Kenya. The donation was made directly to the plaintiff who is registered in the U.S, for the work that it was doing in Kenya through the 1st Defendant society. 14. The donation they made was made on the strength and belief that P.W.1 had been elected and/or appointed as the chairperson of the 1st Defendant society of Kenya; hence they were assured that their donation was safe it was their testimony that their interaction was with P.W.1, and not the others officials of the 1st Defendant 15. P.W.6, the treasure of the plaintiff organisation stated that the funds were wired to the 1st Defendant society, towards acquisition and development of land in Kenya were done because of the belief and understanding that P.W1 was legally elected or appointed as the chairman of the 1st Defendant’s society. 16. With the testimony of the 6 witnesses, the plaintiff closed its case. **Defence case and evidence** **Defence case** 1. In their statement of Defence and counter-claim the Defendants averred interalia; 2. The 1st Defendant was founded in 1995 and not 2015, by Vivian Mbugua the wife of the 2nd Defendant, and no talk of a takeover by the plaintiff of the 1st Defendant was ever initiated; but a talk of support of the 1st defendant through donors was discussed. 3. That SOS Mission Africa Inc and the Bible School Kilgoris were built through donations from donors and friends of the church under the supervision of Mission SOS Africa Inc Kilgoris church under pastor Lerina, who managed to mobilize donors after his visit to Switzerland in 2018, the donors agreed to support his Missionary work in Kenya. 4. The defendants stated that the meetings held with the plaintiff were not AGM as purported as during the Covid-19 period the prevailing protocols barred physical gathering in the entire county, and that Bishop Samuel Stenberg a foreigner did not have capacity on his own or under the instructions of Johannes Amritzer to call for an AGM. 5. That the said Bishop Samuel Stenberg have pre-written minutes which he sought to have the membership of the Defendants sign so as to change the ownership of Mission SOS Africa Inc and the members refused to sign the same stating that it was unconscionable to do so. 6. That all monies used to set up Kilgoris church were donations and offerings from friends of the church which was mobilised by Pastor Lerina during his visit in Switzerland and one Johannes Armitzer convinced the donor to channel the funds through the plaintiff’s account for easier transmission to the 1st Defendant, hence the Donations did not belong to the plaintiff but were to be utilised by 1st Defendant in spreading the word of God. 7. That L.R No. Transmara/Oloiborsoito/544 was acquired solely by pastor Lerina through proceeds from donors and friends abroad. All developments were done through donor funding. 8. That Transmara/Oloiborsoito/544 was donated by Pastor Lerina to the church 9. That the other properties were acquired by Pastor Lerina through donations from friends and transferred to Mission SOS Africa Inc. Trustees, and the Pastor of Mission SOS Africa Inc oversaw the developments of the other properties. 10. The Defendants counter-claimed against the plaintiff, the counter-claim relates to Transmara/Oloiborsoito/544, Transmara/Oloiborsoito/596, Transmara/Oloiborsoito/744 and Transmara/Oloiborsoito/813 being properties owned and registered in the name of the 1st Defendant Trustees as well as motor vehicles. 11. Tat counter-claimers prayed for a permanent injunction, that the plaintiff’s suit be dismissed with costs and they be awarded costs of the counter-claim. **Defendant’s Evidence** 1. In summary, the defence called a total of 5 witnesses. 2. D.W.1, Mr. Daniel Njoroge, a registrar from the Registrar of Societies testified and produced a copy of the 1st Defendant’s constitution, and confirmed that the 2nd, 3rd and 4th Defendants are currently the officials of the 1st Defendant society. 3. He produced a copy of the Constitution as D.Exhibit 1(a) receipt of payment as 1(b) and letter forwarding the constitution as 1(c). 4. In cross-examination he stated that the name of society was Mission SOS Africa (Inc) whose registration certificate No. is 16605 and register society No. 31445 registered on 9th January 1995. 5. There was a change of name and certificate of issued in name of Mission SOS Africa handwritten, but no amended certificate was issued. 6. On re-examination, the witness stated that copy of constitution was certified on 24.07.2025 and the same reads Mission SOS Africa but at time of certification the Mission SOS Inc. 7. D.W.2, Bishop Dishon Mbugua the leader of the 1st Defendant testified. He confirmed registration of the 1st Defendant in 1995. That registration was done after submission of registration letter and constitution. That due to change of and expansion of operations, there was a request for amendments which was approved. He produced a copy of their constitution and stated that Article 11 of their Constitution provided for the Objectives and the office bearers were captured at Article IV and meetings were convened in accordance with Article VIII. 8. The witness denied incorporation of the Plaintiff’s officials in their leadership as the presbytery Board was the one that appointed an executive committee while meetings were convened by the General secretary vide a Notice. 9. With reference to Minutes appointing Johannes into leadership of the 1st Defendant, the witness stated that only the presbytery Board could sanction leadership change, but was convened by Johannes and Samuel who could not convene the meeting, as per the constitution as no Notice was issued by the General secretary. 10. He stated that Johannes did not deal with the leadership but mainly dealt with Joseph Lerina that the plaintiff only worked with the Kilgoris church, that the suit properties were registered in the name of 1st Defendant and that Transmara/Oloiborsoito/544 was donated by Joseph Lerina to 1st Defendant. 11. That the other properties were bought by Joseph Lerina who transferred the same to the 1st Defendant purchase facilitated for funds from the church account. 12. The witness stated that the 1st Defendant did not defraud the plaintiff as the properties were bought by funds from Johannes and other donors. 13. On cross-examination, the witness stated that he was a founder member of the 1st Defendant, but he was not aware of letter appointing Mr. Johannes as an Assistant Secretary General with regard to the video recording the witness remembered the events recorded therein which related to a meeting called by Johannes and not convened by the 1st Defendant. 14. That in the said video Vivianne did not hand over the 1st Defendant’s organisation to Johannes. The witness disputed the signature on the minutes but confirmed the ID No. to be his. 15. The witness further stated that their conduct did not lead to the belief by Johannes and his Board that they had been elected into the Board of the 1st Defendant. 16. The witness stated that the suit properties had been bought by them and hence their registration in the 1st Defendant’s name. 17. On re-examination, the witness stated he had not seen the letter previously, the letter authored in 1997 and the same did not have a letter lead but was stamped. No leadership mantle was given to Johannes and his team and at the time of the video, Vivianne had left the leadership of the organisation (1st Defendant). The witness stated that he had not reported abut the forged signatures on the minutes as he first saw them in court. There were no notices concerning the alleged meetings by the General Secretary nor were there any Agreements for sale between the vendors and the 1st Defendant. 18. The witness stated that Joseph Lerina in-charge of Narok and he supervised the construction through donations that came to him. 19. The witness prayed that the suit properties be returned to the 1st Defendant. 20. D.W.3, Gabriel Garama Charo he General Secretary of the 1st Defendant adopted his witness statement dated 29.02.2024, it was his further testimony that the 1st Defendant was registered as Mission SOS Inc. but later the name was amended but no certificate of change was issued. The constitution of the 1st Defendant uses the name Mission SOS Africa Inc. He stated that his role as the General Secretary was to convene meeting. He did not convene any of the meetings in 2020 as the Covid protocols did not allow physical meetings. He had not seen the minutes but saw them first time in court. He stated that he had counter-claimed for the properties that were registered in their names. 21. On cross-examination the witness stated that he was the custodian of records for the 1st Defendant. He denied attending and/or convening any of the meetings in 2019, 2020, 2021 and 2022, but attended a meeting in Kilgoris in 2023. He was adamant that the issue of leadership of the 1st Defendant was not discussed with Johannes and he was not aware of any dispute in Kilgoris. He stated that although he was one of the trustees of the 1st Defendant, the land documents of Kilgoris were registered in the names of the Kilgoris leadership. 22. He stated that the suit properties were purchased vide donations from friends abroad who included Johannes but did not know the identity and names of the person who donated. 23. On the loss of the title, the witness stated that they verbally informed Joseph Lerina to report the loss of the same. 24. On re-examination the witness stated he had gone through the minutes presented by the plaintiff and confirmed that he did not convene any meetings that resulted into the minutes and neither did he participate in any of the meetings as he was not invited. 25. He stated further that the meetings were not authorised as the psyberity Board that authorises elections was not involved though some members of the Board did attend the meeting. He stated that he kept records and documents at the National level, but the Kilgoris titles were in the custody of Joseph Lerina as the leader of Kilgoris church. 26. D.W.4, Emmanuel Morgan Mbogua a Youth and Children Pastor as well as a Deputy Secretary of Mission SOS Inc. testified and adopted his witness statement. It was his further testimony that Mission SOS Inc. and Mission SOS Africa Inc. were one and the same organisation; and that the desire to change the names was not successful hence they were stuck with the name Mission SOS Inc. 27. On cross-examination, the witness stated that he was not aware that Johannes was involved with the Defendant since 1997. He did not know any of the friends and donors but was informed of the donation by Joseph Lerina. He disputed the meetings as they did not emanate from official meetings and were concerned by Samwel over a cup for tea. While he had attended the meeting at SOSA in Vihiga his name was missing from the list of the attendees. 28. On re-examination, the witness stated that the KCB and Coop Bank accounts were operated by Joseph Lerina, and there was a letter to the Banks for change of signatories from Lerina to Johannes. 29. The last Defence witness D.W.5, Joseph Lerina equally testified and adopted his witness statement. It was his testimony that he was the Pastor in-charge of Kilgoris SOS since 1997. 30. The witness testified that Mission SOS Inc. is registered under the Kenyan Law and that he was aware of the Bank accounts registered under their name. He stated that under the organisation’s constitution, the Executive Board directs on leadership and funds are raised through offertory, tithes, or donations from donors. 31. The witness also testified that the role of the Plaintiff is limited to that of a donor and that the development of the church has been through donations from well-wishers. He stated that the land upon which the church sits was donated by him in 2009 (Property no. Transmara/Oloinosoit/554) and later built a church in Transmara/Oloibosoit/543 and drilled a borehole. 32. He further testifies that the donations were conditional but not absolute and he sent proof of use of funds to the donors through whatsapp and email. 33. Further, the witness testified that he has a sale agreement in respect of Transmar/Oloibosoit/596 as the purchaser while the vendor was Meitoi Samwel Sopia dated 03.12.2019 purchased at Kshs. 1,600,000/-. The Plaintiff was aware of the purchase and did not object. The witness also bought Parcel No. 744 from David Kibaki Olenguleti on 25.10.2019 for a consideration of Kshs. 2,500,000/- and the title was transferred to him. The witness also purchased Property No. Transmara/Oloibosoit/813 on 07.08.2020 from Samson Letim Ngaminin at a price of Kshs. 2,000,000/- which he claims he paid the deposit from his personal accounts and the rest from the church accounts. 34. He further states that he transferred the properties to Mission SOS Inc. on his own volition and produced the transfer documents as evidence marked D Exhibit 1 and D Exhibit2. This transfer was to the rightful owners Mission SOS Inc. a Defendant herein with titles being issued. There is no indication that the titles were registered in trust for the Plaintiff and the Plaintiff was aware of the transfer and did not object until 2023. Further, the witness stated that he has no authority to transfer the documents from the church to the Plaintiff. 35. The witness also adopted his witness statement dated 29.02.2024 which was adopted as part of his evidence in chief. 36. During cross-examination, the witness testified that he met some of the donors including Johannes and Timothy and the donations were mostly channeled through his personal account. That he purchased property which he later transferred to the church which were received by members of the Kilgoris church; Godfrey Sifuna Silvano, Joseph Bwanamo Ole Mkasa, and Elizabeth Sauda. According to Mission SOS In. the property is held by the Board who are not trustees and not appointed by the National Board. 37. For the lost title deed, the witness testified that he filed a caution under verbal instructions of the Board and reported to the police but did not produce any evidence in that regard. 38. The witness also testified that though they rely on tithes and offertory, the same could not undertake the projects constructed in the church including a kitchen, dormitories, gym, guest houses, and the church. 39. During re-examination, the witness reiterated that the affidavit of consent was meant to facilitate the transfer of the properties to the church and not a donation. That the money for the construction of the church was from the church accounts and the property he bought has no relation to the Mission Sos Inc. 40. He closed his testimony by stating that he received donations on behalf of the church and acknowledgement that he would be transparent with its use. 41. That marked the end of the Defence case. **PLAINTIFF’S SUBMISSIONS** 1. The Plaintiff submitted to the court through written submissions and framed five (5) key issues for determination. 2. On issue No. 1, whether the conduct of the Plaintiff and the Defendants gave rise to a trust and/or a fiduciary relationship, the Plaintiff submitted on the definition of a Trust relying on ***Snell’s Equity 30th Edition at Pg 110***. That Courts can declare the existence of a trust even when parties had no intention to create one quoting **Paul v Constance [1977] WLR 527 (refer to Prof. A. Hudson, Equity and Trusts 4th Edition at Pg 71-73), Carl Zeiss Stiftung v Herbert Smith and Company (No.2) 1969 2 CH 276 at 301 [Cited in Snell’s Equity. 30th Edition, PG 221).** 3. On the first issue, the Plaintiff submitted that a fiduciary relationship arises where one person has undertaken to act for another in a particular matter in circumstances giving rise to a relationship of trust and confidence. The parties must act in good faith and must not profit from their position and must not place themselves in a position where their duty and interest conflict. The Plaintiff also relied on the case of **Bristol and West Building society v Mathew [1998] CH 1 at 18** to define a fiduciary relationship. 4. On the same issue, the Plaintiff submitted that the only remedy that would give justice to the Plaintiff is an equitable remedy of declaration of a constructive trust. 5. On issue No. 2, whether the suit properties Transmara/Oloiborsoito/554, 596, 744, and 813 are held in trust by the Defendants for the Plaintiff, the Plaintiff submits that all the suit properties were acquired using donor funds that were sent by the Plaintiff to the 1st Defendant Society. 6. On this issue, the Plaintiff’s Submissions submit that in regard to Transmara/Oloiborsoito/554, Joseph Lerina Kiptek was duly compensated for donating his land to the 1st Defendant Society for the construction of a church. It is the Plaintiff’s opinion that the said property was donated to convince them to source for funds and construct the church that stands on the suit property today. 7. On the same issue, the Plaintiff submits that the Defendants hold the suit properties in trust for the Plaintiff, having failed to demonstrate how they acquired the properties and how they developed the suit properties. 8. On issue No. 3, whether the Defendants’ conduct resulted in a breach of trust or fiduciary relationship, the Plaintiff submits that the Defendants’ conduct resulted in a breach of trust or fiduciary relationship. According to the Plaintiff, the Defendants failed to call a key witness contrary to the decision in **Stanley Mombo Amuti v Kenya Anti-Corruption Commission [2019] KECA 783 (KLR), Bukenya & Others v Uganda [1972] EA 549, Mann Holdings Pte Ltd & Another v Ung Yoke Hong [2018] SGHC 69**, and **Elgin Finedays Ltd v Webb a947 AD 744**. The Plaintiff also relied on **Section 107 (1)(2) of the Evidence Act**. 9. The Plaintiff also submitted on the same issue that fraud must be proved strictly and that according to the Evidence submitted before the court, the Defendants actions fall squarely within the definition of fraud relying on the courts’ decisions in **R.G Patel v Lalji Makanji (1957) EA 314, Jenniffer Nyambura Kamau v Humphrey Nandi (3013) eKLR, Koinange & 13 Others v Nyati (1984) EA 425, Gudka v Dodhia C.A No. 21 of 1980,** and **Richard Ekwesera Onditi v Kenya Commercial Finance Co. Ltd CA No. 329 of 2009, Nairobi**. 10. On issue No. 4, whether the Plaintiffs are entitled to the equitable reliefs sought in the suit, the Plaintiff submitted that they are entitled to the reliefs sought based on the ***doctrine of Estoppel*** quoting P**icard v Sears [1837] 6AD & E 469 at 472, Freeman v Cooke [1848] 2 Exch. 654, Canadian Pacific Railway v R [1931] AC 414 at 429, Central London Property Trust Limited v High Trees House Limited (1947) KB 130 at 135, Section 100 of the Evidence Act (Cap 80), Overseas Finance Corporation Limited v the Administrator of the General of Tanganyika Territory & Another EA [1942] 6, Shah & 7 Others v Mombasa Bricks & Tiles Limited & 5 Others [2023] KESC 106 (KLR),** **Isack M’Inanga Kiebia v Isaaya Theuri M’lintari & Another Petition 10 of 2015 [2018]eKLR, Twalib Hatayan & Another v Said Saggar Ahmed Al-Heidy & 5 Others, Civil Appeal No. 51 of 2014 [2015]eKLR**, and Macharia **Mwangi Maina &87 others v Davidson Mwangi Kagiri Civil Appeal No. 6 of 2011, consolidated with No. 26 & 27 of 2011 [2014]eKLR**. 11. The Plaintiff’s submissions were also buttressed by the findings in the case of **William Charles Fryda v Assumption Sisters of Nairobi Registered Trustees & Another [2017] eKLR**, where the courts held that they’ll always uphold the wishes of the donors who give resources to support charitable trusts such as religious organisations. 12. On issue No. 5, whether the Defendants’ counterclaim should be allowed, the Plaintiff submits that the Defendants’ counterclaim is fatally defective, unmeritorious, and ought to be dismissed with costs quoting **Order 6 Rule 5 of the Civil Procedure Rules 2010, Classic Interiors v Libuyi [2025]KEELC 8358 (KLR), Article 162 (2)(b) of the Constitution and the Land and Environment Act, Karisa Chengo & 2 Others v R [2015]eKLR, Samuel Kamau Macharia & Another v Kenya Commercial Bank and 2 Others (2012)eKLR** and **Owners of the Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Ltd [1989]eKLR**. 13. Based on the strengths of the Plaintiff’s submissions above, the Plaintiff submits that they have proved their case on a balance of probabilities and ask the court to allow the suit as prayed in the Plaint. **Defendants’ Submissions** 1. The Defendants vide their submissions framed 8 issues for determination based on the Plaintiff’s submissions. 2. On issue No. 1, whether registered title can be impeached, the Defendants submitted that **Section 26 (1) of the Land Registration Act** provides that a certificate of title is *prima facie* evidence that the registered proprietor is the absolute and indefeasible owner and that the title can only be impeached if obtained through fraud or illegality to which the proprietor was a party. 3. On this issue the defendants relied on the Court of Appeal decision in **Wreck Motors Enterprises v Commissioner of Lands** that a title cannot be challenged except in strict proof of fraud and **R.G Patel v Lalji Makanji**. Therefore, the Defendants submit that the presumption of indefeasibility remains intact. 4. On issue No. 2, whether donor funding created a resulting trust, the Defendants submit that donor-funding of charitable programmes is not equivalent to purchase-money contribution creating equitable ownership and that equity does not re-write donations retrospectively. The defendants submit that no resulting trust since there was no trust-deed, no escrow arrangement, no joint registration, and no board resolution reserving ownership. 5. On issue No. 3, whether a constructive trust can be imposed, the defendants submit that a constructive trust addresses unjust enrichment arising from wrongful acquisition relying on the Court of Appeal’s decision in **Twalib Hatayan & Another v Said Saggar Ahmed Al-Heidy**. 6. On issue No. 4, whether Estoppel can transfer land, the defendants submit that Estoppel cannot override statute and land deposition requires writing under **Section 3 (3) of the Law of Contract Act** and the Court of Appeal decision in **Willy Kimutai Kitilit v Michael Kibet** that equitable doctrines cannot defeat statutory requirements. 7. On issue No. 5, governance dispute versus proprietary rights, the defendants submit that leadership disputes fall within the **Societies Act** framework and that property belongs to the legal entity and not individual office bearers or affiliates and that the plaintiff conflates administrative control with proprietary entitlement. 8. On issue No. 6, Constitutional Dimension of Article 40, the defendants submit that Article 40 of the Constitution protects the right to acquire and own property and Article 40 (2) prohibits arbitrary deprivation. The defendants also relied on the decision in **Mitu-Bell Welfare Society v Kenya Airports Authority**. 9. On issue No. 7, burden of proof, the defendants submit that **Sections 107-109 of the Evidence Act** place the burden on the Plaintiff to prove trust, fraud, proprietary entitlement, and legal obligation breached. The defendants claim that instead, the Plaintiff has proved a history of collaboration, donor funding, and institutional breakdown. The defendants contend that the evidence introduced by the Plaintiff is insufficient to defeat a registered title. 10. On issue No. 8, the cumulative legal effect, the defendants submit that when the evidence is examined holistically, the title is regular, acquisition was lawful, funding was voluntary, no written trust exists, no tracing established, no fraud proved, no unjust enrichment demonstrated, and no constitutional violation shown. The defendants submit that collectively, the evidence renders the suit legally untenable. 11. On the strengths of their submissions above, the defendants submit that the law cannot convert institutional estrangement into equitable ownership and the invitation by the Plaintiff for the court to elevate moral grievance above statutory land law and constitutional protection must be respectfully declined. 12. Defendants’ submissions pray that the Plaintiff’s suit be dismissed in its entirety, the court to declare the 1st Defendant the absolute and indefeasible proprietor of the suit properties and award costs to the defendant. **Issues for Determination** 1. The issues for determination arising out of the pleadings, the evidence and submissions are as follows; 2. Whether or not the plaintiffs claim is merited? in deciding this issue, the court shall decide on the following sub-issues. 3. Whether the suit properties were purchased through donations made in favour of the 1st Defendant so as to create a Gift as claimed by the defendants or 4. Whether or not the plaintiff has established the claim of Trust over the suit properties and entitlement to them. 5. What reliefs ought to issue. 6. Who bears the costs of the suit? **Analysis and Determination** 1. It is the plaintiff’s claim that the suit properties to wit Transmara/Oloiborsoito/554, Transmara/Oloiborsoito/596, Transmara/Oloiborsoito/774 and Transmara/Oloiborsoito/813 and all the developments therein belong to it and that the 1st Defendant as registered owner holds in Trust for it and/or its nominees. 2. It was the Defendants case and evidence that the suit properties were purchased by DW5 Joseph Lerina who voluntary transferred the said properties to the trustees of the local chapter of the 1st Defendant in Kilgoris. 3. With Respect to Transmara /OLoborsoito /554 DW5 testified that he had donated the same to the 1st Defendant having purchased the same earlier on, it was Dw5’s further testimony that he is the one who entered into the agreements for sale with the vendors and he produced the Agreements for sale thereof. He stated that the funds for the purchase money was through donor funding from donors including PW1 and PW2 and the funds were paid through Church accounts belonging to the 1st defendant hence the suit properties were thus gifts from the donations tithes and offertory of the friends abroad pursuant to a visit he made to Switzerland in 2018 hence the suit properties rightly belonged to the su 4. In answer to this sub issue of the donations being gifts to the 1st defendant by the donors according to Halsbury’s Laws of England 4th Edn, vol 20, Sweet & Maxwell p. 24);**“where a person buys property and pays the purchase money, or part of it, but takes the purchase in the name of another, who is neither his child, adopted child nor wife, prima facie,there is no gift, but a resulting trust for the person paying the money**”See Twalib Hatayan and Another Vs. Said Saggar Ahmed AL Heidy and 5 Others. 5. It follows therefore that the funds raised through donations did not amount to a gift in favour of the1st Defendant. 6. The plaintiff did not plead the exact nature and type of Trust that arises in respect of its claim over the suit property and neither did it lead evidence to the existence of a Trust Deed, between itself and the 1st Defendant. 7. The Trusts Act vide section 2 thereof defined a Trust interiliac “**the expressions “Trust and “Trustee” extend to implied and Constructive Trusts,” .**Having found no existence of a Trust deed, and the trust deed being the Express Trust , it must thus be deemed that the Trust pleaded by the Plaintiff to be the implied and/or Constructive Trusts defined in section 2 of the Trusts Act aforesaid. 8. The court is now tasked to determine the kind of Trust that arose between the Plaintiff and the 1st Defendant. The Court of Appeal in its decision in the case of Twalib Hatayan and Another Vs. Said Saggar Ahmed AL Heidy and 5 Others observed as follows: ***“Trusts are created either expressly by the parties or by operation of law….*** ***In the absent of an express Trust, we have trusts created by operation of law. These fall into two categories; Constructive and Resulting Trust….A constructive Trust is an equitable remedy imposed by court against one who has acquired property by wrong doing. (see Blacks law Dictionary)….It arises where the intention of the parties cannot be ascertained. If the circumstances of the case are such as would demand that equity threats the legal owner as Trustee the law will impose a Trust….…..A resulting Trust 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 (see Blacks law dictionary)…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…”*** Applying the definition of the two implied Trusts above to the Plaintiffs case and evidence the court is able to find which of the two implied trust apply in this case. 1. It is the plaintiff’s contention and it led evidence to this effect that it mobilised donor funding so as to purchase the suit properties in which were bought using the said funds that it transferred from its account to the Accounts of the 1st Defendant. 2. In this regard the plaintiff produced copies of its statement of Accounts, as well as copies of statements of Accounts of the 1st Defendant, which showed in the narration receipt of these funds. 3. The transactions appearing at Pages 95-113 of the bundle are reflected in the Bank statements as follows: 4. A wire transfer of US Dollars 77,983.00 wired from the Plaintiff to the Defendant at the Co-operative Bank account presented in Page 96. 5. An invoice from Mahiri General Supplies of Ksh. 2,291,311.00 dated 15.04.2022 in page 114. 6. An invoice from Mahiri General supplies for Kshs. 2,425,000.00 dated 01.05.2022 in page 120. 7. Page 124 shows a breakdown of the costs of invoice or BQ from Mahiri Creations for Kshs. 2,717,000.00. 8. A statement of Co-operative Bank for payments made to Mahiri Creations on 17.07.2023 for Kshs. 1,240,233.00 in page 90. 9. The next payment to Mahiri creations was done on 23.06.2023 for Kshs.149,000, as well as Kshs.81,250. 10. On 24.06.2023, a payment of Kshs.244,830.00 was made to Mahiri Creations. 11. Pages 115,116,118, and 119 of the bundle show the same receipts for purchase of materials for construction of the infrastructure. 12. An invoice from Pazifik Bookkeeping services is captured on page 121 and Kshs. 817,765.00 was transferred to them on 22.08.2023 for payment of salaries and the transfer receipt is in page 89. 13. On 16.09.2023, Kshs. 817,765.00 was transferred to Pazifik Bookkeeping Services. 14. On 29.08.2023 a withdrawal for a phone bill was made. 15. On 29.08.2023 money was withdrawn for the church phone bill. 16. On 04.09.2023 a withdrawal was made for weekly grocery. 17. On 07.09.2023 a withdrawal was made for the feeding programme. 18. Joseph Kipket was given Kshs. 73,000/- in cash to build a prayer centre. 19. The above evidence shows that the acquisition of the suit properties was done using the funds from the 1st Plaintiff, the constructions and developments were equally paid for by the plaintiff. 20. Which Trust was thus created.? 21. The court notes that the e Plaintiff placed reliance on the decision in the case of **Isack M’Inanga Kiebia v Isaaya Theuri M’lintari & Another Petition 10 of 2015 [2018] eKLR** which decisionrelates to an issue of customary trust but no proof of existence of customary trust were proven hence that decision does not aid the Plaintiff’s case and it is relevant in the circumstances of this case. 22. Whereas the source of the purchase price being the plaintiff would price strongly suggest creation of a Resulting Trust, the evidence mostly of the donors having donated ostensibly on the strength of P.W.1 and members of his board being appointed to the Board of the 1st Defendant as expressly pleaded at paragraphs 5,13,14,15 16,22,27 of the Plaint and for the 1st Defendant and its Board not to have followed through the intention of the allowing the leadership of the 1st plaintiff into 1st defendant, leads to the inevitable conclusion that the 1st defendant’s actions were actions of unjust enrichment, and the Trust that to be imposed so as to avoid unjust enrichment would thus be Constructive Trust and not the Resulting Trust. 23. The court therefore finds that the plaintiff has established that it’s entitlement of the suit properties by virtue of the existence of Constructive trust. In this regard the court finds that the plaintiff has met the evidential burden under section 107 to 109 of the Evidence Act and its case is thus merited and the defendant’s Defence and Counterclaim are not merited. 24. On what reliefs ought to issue the defendants placing reliance on section 26 of the Land Registration Act as well as the decisions in the cases of **Wreck Motors Enterprises v Commissioner of Lands** that a title cannot be challenged except in strict proof of fraud and **R.G Patel v Lalji Makanji**. that the presumption of indefeasibility remains intact submit that relief sought by the Plaintiff are untenable. 25. On its part the plaintiff submits relying on the decisions I the cases of MachariaMwangi **Maina &87 others v Davidson Mwangi Kagiri Civil Appeal No. 6 of 2011, consolidated with No. 26 & 27 of 2011 [2014] eKLR** to buttress their point that the reliefs sought can be granted. As well as in the case of **William Charles Fryda v Assumption Sisters of Nairobi Registered Trustees & Another [2017] eKLR** for the proposition that a court will look at the wishes of the donor who gave finance support. 26. The reliefs sought by the Plaintiff have the effect of interfering with the registration and proprietorship of the defendants to which the Defendants submit that it is not possible and the Plaintiff submit that it is possible, the Supreme court of Kenya in its decision in the case of Shah and others vs Mombasa Bricks Limited Petition E018 of 2022 (2023)KESC 106 eklr.Where from paragraph 77 to 87 of the said decision the Supreme court observes interalia as follows**” In**[***Macharia Mwangi Maina & 87 others v Davidson Mwangi Kagiri***](http://kenyalaw.org/caselaw/cases/view/95635/)**Civil Appeal No 6 of 2011, consolidated with No 26 & 27 of 2011 [2014] eKLR and in**[***Willy Kimutai Kitilit v Michael Kibet***](https://kenyalaw.org/akn/ke/judgment/keca/2018/573)**, Civil Appeal No 51 of 2015 [2018] eKLR, the Court of Appeal, in matters involving the sale of land, held that the equitable doctrines of constructive trust and proprietary estoppel are applicable and enforceable to land, subject to the circumstances of the case.** **78.The applicability of the doctrine of constructive trust is therefore now settled within our jurisdiction and is applied to land sale transactions…….”** 1. At paragraph 87 of the said decision the court concluded as follows **“On this issue and for the reasons given above, we therefore find that a constructive trust can be imported into a land sale agreement to defeat a registered title.**” 2. It therefore follows that the reliefs sought by the Plaintiff can be issued and having proven merit the case the Plaintiff is thus entitled to the reliefs sought in the Amended Plaint. **DISPOSITION** Accordingly, judgment is entered for the Plaintiff against the defendants jointly and severally in terms that a) A declaration that the plaintiff is the beneficial and legal owner of i)Transmara/Oloiborsoito/554 ii)Transmara/Oloiborsoito/596 Iii)Transmara/Oloiborsoito/774 Iv)Transmara/Oloiborsoito/813 and all the developments therein. b) An order directing the Defendants to transfer the following assets to another charitable organisation nominated by the Plaintiff to wit, Mission SOS Adventure Africa Co. Limited within 90 days from today failure to which the Deputy Registrar of this Honourable court do execute all necessary documents to effect the orders of this court in relation to the transfer of i)Transmara/Oloiborsoito/554 Ii)Transmara/Oloiborsoito/596 Iii)Transmara/Oloiborsoito/774 iv)Transmara/Oloiborsoito/813 and all the developments therein. c)A permanent injunction be issued restraining the Defendants, their agents, servants or employees from entering, possessing, alienating, occupying, acquiring and/or fencing off or in any manner whatsoever interfering with the plaintiff’s quiet user and possession of Transmara/Oloiborsoito/554, Transmara/Oloiborsoito/596, Transmara/Oloiborsoito/774, Transmara/Oloiborsoito/813. d)Costs of the suit and the Counterclaim are awarded to the Plaintiff. Dated at Kilgoris this 31st day of July, 2026 Hon. M.N. Mwanyale Judge **In the presence of** CA – Sylvia/Gilbert Ms. Ataka h/b for Dr. Khakula for Plaintiff Mr. Wanyonyi for the Defendant