https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5265

 REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT OF KENYA AT MOMBASA COUNTY COURT NAME: MOMBASA ENVIRONMENT AND LAND COURT CASE NUMBER: ELC 41/2016 NOOR MOHAMED JAN MOHAMED VS ZAHARA JAN ASHRAF JUDGMENT Noor Mohmmed Janmohammed Ashraff (hereinafter referred to as the plaintiff) sued Zahara Jan Ashraff (hereinafter referred to as the defendant).. This suit was heard by this court and was dismissed. The plaintiff was dissatisfied and filed an appeal in the Court of Appeal against the entire decision being Mombasa Civil Appeal No. 55 of 2020, NoorMohamed JanMohamed Ashraf –vs- Zahara Jan Ashraf. Vide a decision made by the Court of Appeal, the Court of Appeal allowed the said appeal and remitted the matter back to the Environment and Land Court to receive additional evidence on certain key issues. The specific mandate given to this Honorable Court by the Court of Appeal is limited to receive additional evidence and thereafter assess and determine the value of the beneficial interest of the Plaintiff and the Defendant herein over the suit properties being Plot Nos. XXVII/59 and X/71. The court of appeal found that the transfers of both suit properties from the late Shuni Haji Mirdor the siblings’ mother, now deceased, to the Defendant were irregular and fraudulent. The court found that a constructive trust exists in favour of the Plaintiff over Plot No. XXVII 59, and that a constructive trust also exists in favour of the Plaintiff over Plot No. X/71 by virtue of his contribution of time, energy, management services and care of the family during the Defendant's lengthy absence from the country. Moreover, the court emphatically stated that the said acts by the Plaintiff contributed towards increasing the value of the property. This court heard the plaintiff, the defendant and the witnesses whose evidence in summary was that property no 59 was valued at Ksh 30,000,000 whereas no 71 was valued at 80,000,000 and that the defendant made financial contribution whereas the plaintiff added value to both through management during construction and post construction. The plaintiff submits that by the application of the principle of stare decisis, the decision made by the Court of Appeal is binding on the trial court herein. Therefore, it is not open to the Defendant or for that matter any other person to attempt to deny the fact that the Defendant indeed holds the two suit properties for her own benefit and that of the Plaintiff. Furthermore, the Defendant cannot also run away from the fact that the registration of the two properties in her name was fraudulent and irregular. Indeed, the only issue that is now open for determination is for the trial court to determine the respective quantifications of the beneficial interests that the Plaintiff and the Defendant respectively have over the suit properties. The plaintiff relies on the decision in Hussey vs Palmer (1972) 3 All ER 755, where Lord Denning MR poetically quipped that: "Although the plaintiff alleged that there was resulting trust, I should have thought that the trust in this case, if there was one, was more in the nature of a constructive trust: but this is more a pattern of words than anything else. The two run together. By whatever name it is described, it is a trust imposed by law whenever justice and good conscience require it. It is a liberal process, founded upon large principles of equity, to be applied in cases where the defendant cannot conscientiously keep the property for himself alone, but ought to allow another to have the property or a share in it. The trust may arise at the outset when the property is acquired, or later on, as the circumstances may require. It is an equitable remedy by which the Court can enable an aggrieved party to obtain restitution. It is comparable to the legal remedy of money had and received which, as Lord Mansfield said, is very beneficial and, therefore, much encouraged. Thus we have repeatedly held that, when one person contributes towards the purchase price of a house, the owner holds it on a constructive trust for him, proportionate to his contribution, even though there is no agreement between them, and no declaration of trust to be found, and no evidence of any intention to create a trust." The plaintiff further relies on Hatayan & another v Al-Heidy & 5 others [2015] KECA 713 (KLR) the Court of Appeal in agreeing with the analysis of a constructive trust and as expounded by Lord Denning held as follows: a. "A constructive trust is an equitable remedy imposed by the court against one who has acquired property by wrongdoing….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…Imposition of a constructive trust is thus meant to guard against unjust enrichment." The plaintiff fully relies on the said holdings from both the Court of Appeal in England and in Kenya for the proposition that the circumstances that have clearly presented themselves in this matter are such that it would be unconscionable for the Defendant to own the two parcels herein absolutely while her only brother/ the Plaintiff is left completely empty- handed. We thus appeal to the conscience of the court to hold that the Plaintiff and the Defendant hold the two parcels on equal basis. 1. Since the existence of a constructive trust by the Defendant with regard to the two properties in favour of the Plaintiff is now a fait accompli (as the Court of Appeal has already so held), the court's duty herein is to assess and give effect to the Plaintiff's share of entitlement therein. It is our view that the trial court is required to take a holistic view of all the contributions made by both the Plaintiff and the Defendant, whether financial or otherwise and with that material determine the respective entitlements of the two parties. 2. In carrying out the said exercise, we urge the Honourable court to be guided by the decision in Lloyds Bank Plc v Rosset (1991) 1 AC 107, where the House of Lords recognized that in establishing the quantum of a beneficial interest, the court has to consider the parties' dealings in relation to the property, including contributions in kind and in management. This approach has been adopted in Kenya as can be seen in the decision in CKC & another (Suing through their mother and next friend JWN) v ANC [2019] KECA 354 (KLR), where the Court of Appeal quoted with precision the decision in Rose Mueni Musau v. Brek Awadh Mbarak, CA. No. 267 of 2011, whereby the Court of Appeal held that the court should adopt the approach that best protects the equitable interests of all the parties. 1. As cited in GS v AB [2017] KEELC 535 (KLR), the Supreme Court of the United Kingdom in Stack vs Dowden (2007) UKHL 17 held that in quantifying beneficial shares, the Court is entitled to have regard to the whole course of dealing between the parties, including non- financial contributions. The court should look at all the relevant circumstances in order to ascertain the parties' true intentions and the fairness of any proposed division. For the purpose of emphasizing their submissions herein, plaintiff relies on the decision in Rose Mueni Musau v. Brek Awadh Mbarak. In that case, the properties were registered in the name of Brek Awadh Mbarak and when Brek and Rose divorced, Brek took the view that the Islamic Law expressly prohibited him from sharing his property with a non-Muslim. That position was upheld in the High Court but on appeal, an enlarged five Judge bench of the Court of Appeal overruled that position and held that even though Rose Mueni could not proof that she had made any financial contributions, either in the acquisition of the said properties or the development of the same, yet as a wife of Brek, she was deemed to have contributed in kind and hence both Brek and Rose were held entitled to an equal share of the said properties. The plaintiff summarizes the evidence thus that Plot No. XXVII/59 is ancestral property that belongs to the family of the Plaintiff and the Defendant herein. As fate would have it, it is only the Plaintiff and the Defendant who survive their late mother, Shuni Haji Mirdor. That neither of the two parties produced any agreements relating to the construction works on the said property. More critically also, is the fact that the Defendant left Mombasa to look for greener pastures in several parts of the world and was hardly ever physically present in Kenya for any meaningful period of time. The said property was at all material times registered in the name of Shuni Haji Mirdor, who was residing in the said property with the Plaintiff and the Defendant. The plaintiff submits that in light of the above, the inescapable conclusion that clearly presents itself is that the Plaintiff and the Defendant hold equal shares on the said property. From the finding of the court of appeal that the property is a family property and owing to the fact that the Plaintiff's family consists only of the Plaintiff and the Defendant herein, the plaintiff submits that the said property should be divided equally among the parties herein. The Plaintiff testified at the re-hearing that he has been directly involved with Plot 59 since his formative years. During the re-hearing on 3rd February, 2026, the Plaintiff stated on oath that he personally supervised the construction of the ground floor and the first two storeys of the residential and commercial building erected thereon. He further stated that he resided in the property and managed it throughout. The Defendant has been making heavy capital in the fact that she paid a sum of Kenya Shillings Three Million Two Hundred Fifty Thousand (Kes. 3,250,000/=) to a bank following a loan that the Plaintiff had borrowed. With regard to the issue, the plaintiff submits that at no time was the Defendant authorized by the then registered owner of that property (Shuni Haji Mirdor) to pay the said money to the bank. Additionally, the Plaintiff had already filed a suit in court against the said bank. The Defendant did not produce any evidence that the said property was under any threat of being auctioned by the bank. However, the Plaintiff is agreeable that the Defendant may be awarded the sum of Kenya Shillings Three Million Two Hundred Fifty Thousand (Kes.3,250,000/=), so as to bring the parties to the same position as they would have been had the Defendant not paid the said sum of Kenya Shillings Three Million Two Hundred Fifty Thousand (Kes.3,250,000/=) to settle the said bank loan. On Plot No. X/71, the plaintiff submits that the Court of Appeal made an important finding at Paragraphs 62-64 of the Judgment dated 28th July, 2023 with regard to the property known as Plot X/71. While acknowledging that the Defendant funded the purchase and construction of the said property, the Court identified distinct and valuable contributions made by the Plaintiff. The finding is as follows: "…What the Appellant proved, and it was not contested by the Respondent is that he helped to manage the property during the construction. Thereafter he moved into the property, collected rents and used the proceeds to manage the property, take care of their mother's medical and other needs, and those of his family……the Appellant occupied part of the building as his home and partly as business…the Respondent lived outside the country for many years, during which time the Appellant took care of their mother and the properties. Even though the Appellant had not paid for the purchase of Plot X/71, or for the construction, he did contribute time and energy towards its development and later in its management. That contributed towards increasing the value of the property…" Emphatically, at Paragraph 64 of the said Judgment, the court stated thus: "The Appellant had equitable interest over Plot X/71, and therefore a constructive trust existed in his favour over this property as well." The Plaintiff submits that his contributions to Plot No. X/71 were real, substantial and directly enhanced the value of the property. These include the following: 1. The Plaintiff's evidence accepted in material terms even by the Court of Appeal is that he was directly and actively involved in the supervision and management of the construction works on Plot X/71. His evidence is that he: 2. Participated in obtaining and approving architectural and structural plans for the development; 3. Actively supervised the construction works from the foundation and ground floor stages upward; 4. Coordinated with contractors and suppliers throughout the development period, particularly during the period when the Defendant was residing outside Kenya; 5. Made himself available on a daily basis to ensure construction proceeded according to plan and that funds were properly deployed. The plaintiff submits that the court of appeal found that the transfers of both suit properties from the late Shuni Haji Mirdor to the Defendant were irregular and fraudulent and that a constructive trust exists in favour of the Plaintiff over Plot No. XXVII/59. Moreover, that a constructive trust also exists in favour of the Plaintiff over Plot No. X/71 by virtue of his contributions of time, energy, management services and care of the family during the Defendant's lengthy absence from Kenya; and that those acts contributed towards increasing the value of the property. The defendant on the hand submits that the law provides that the burden of proof is always on the party who alleges. It is the duty of the plaintiff to prove his case on a balance of probabilities as per the required standards in Civil Litigation. In this particular instance, the Court of Appeal remitted the file back to the ELC Court with directives for the parties to produce further evidence to substantiate their ownership claim to the 2 suit plots. This was so because the court of appeal could not find any evidence produced by the plaintiff in the initial hearing to enable it pronounce itself on the plaintiff's claim. The plaintiff has totally failed to produce any iota of evidence which this court can utilize to make a finding that the plaintiff has any ownership interest in the suit plots. The defendant is guided by the decision in In re Estate of Kinyua Mwai (Deceased) [2023] KEHC 340 (KLR) on the standard of proof where the Court stated as follows: "39. The standard and burden of proof provided by the Evidence Act ought to be discharged; he who alleges must prove. Section 107 of the Evidence Act places the burden of proof on the party that alleges. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 3 Others (2014) eKLR the Supreme Court held inter alia: The person who makes such allegations must lead evidence to prove the fact. She or he bears the initial legal burden of proof, which she or he must discharge. The legal burden in this regard is not just a notion behind which any party can hide. It is a vital requirement of the law. On the other hand, the evidential burden is a shifting one, and is a requisite response to an already discharged initial burden. The evidential burden is the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence of a fact in issue." Contrary of the established law on evidential burden of proof, the plaintiff has sought to rely on the evidence produced by the defendant which shows how she acquired the two (2) plots and how she financed the construction of the two. The plaintiff is now asking this court to compute how much the defendant has showed she utilized in purchasing the plots and construction of the houses and deduct this figure from the purported cost of construction as sourced from the bills of quantities prepared by his valuer who did not even testify in court and ask the court to conclude that the difference must have been contributed by himself. The defendant submits that the law does not operate this way, it was the duty of the plaintiff to produce bank statements, receipts for purchase of materials or any other expenses towards the acquisition and construction of the 2 houses. Instead, the plaintiff has miserably failed to take a 2nd bite at the cherry as allowed by the Court of Appeal and is asking this court to use assumptions and conjecture to award him the defendant's hard earned property. The plaintiff further wants the court to conclude without tangible evidence that he actually supervised the construction of the 2 houses, managed the houses on behalf of the defendant upon completion of the construction and that he resided in part of the houses as a part owner. He wants this court to use these presumptions to award him a share of the defendant's property. The plaintiff told the Court of Appeal that he contributed both to the acquisition and construction of the houses and the Court of Appeal being a fair and reasonable court found it necessary to allow the plaintiff to avail the evidence of his contribution; and he has failed to do so. On the other hand, the defendant has produced all the relevant evidence to prove her acquisition of the properties and construction of the same. The defendant has gone further to produce evidence to prove that the plaintiff has other properties which he holds at the exclusion of the defendant and contrary to the wrong impression he was creating to the Court of Appeal that he would be left destitute if not given a share of the defendant's property, she has been able to prove that the plaintiff filed this case out of sheer greed and contempt of the defendant because she (defendant) is a woman and the plaintiff believes that as a brother to the defendant, he has a right to the sister's property just because she is a woman. According to the defendant, the plaintiff has not produced anything to show his beneficial interest in Plot No. 59. All what he has produced is a valuation report and a bill of quantity. He has then called upon the court to find that each party had equal share of the property and he should therefore be given 50% less Kshs. 3,250,000/- loan which was repaid by the defendant when the property was about to be sold by the bank due to the plaintiff's default. On the other hand, the defendant produced evidence to show that she is the registered owner of plot No. 59, she has produced evidence of how she constructed the house on it. She has also produced evidence to show she is the one who paid the loan of Kshs. 3,250,000/- which if not paid would have led to the auction of the property and all the parties would have lost everything. The defendant submits that the plaintiff was given a chance to avail evidence to prove his claim of beneficial share but he has failed to do so. The plaintiff cannot prove his beneficial share by filing a valuation report and bill of quantity of the property in issue. The plaintiff was expected to file hard evidence of his contribution towards the purchase, his contribution towards the construction of the building which he has not. Instead of doing so, the plaintiff has claimed that he lost his documents during eviction. This is a naive way of trying to explain his failure to produce documents to prove his case; On plot no 71, the defendant submits that the plaintiff did not prove any share in plot 71. The Court of Appeal in paragraph 62 of its judgment held as follows: - "Regarding Plot 71, we have analysed and evaluated the evidence afresh. We also looked at the exhibits each of the parties presented before the court in support of their claim. We are in agreement with the learned trial judge that the appellant did not support his claim; one, he did not adduce any evidence to show he contributed any monies toward the acquisition of the property. Two, he did not adduce any documentary evidence to show that he contributed towards the construction on the plot. What the Appellant proved, and it was not contested by the Respondent is that he helped to manage the property during construction. Thereafter, he moved into the property, collected rents and used the proceeds to manage the property, take care of their mother's medical and other needs, and those of his family" The learned trial judge was satisfied that the respondent bought Plot X/71 and developed it with her own resources. On Occupation of part of Plot No.71 by the plaintiff, the defendant submits that the defendant's witness statement dated 26th July 2016 in Volume A, the defendant testified that she had constructed part of Plot No. 71 as a residence and that the plaintiff being part of the family, the defendant could not deny him to reside in the house together with the mother in order to allow him to access the mother. The defendant was not residing as a part owner; he was family not owner. On whether the plaintiff contributed to the value of the property through supervision and management, the defendant submits that the simple answer to this is No. The plaintiff has not at all proved that he ever supervised the construction nor managed the houses. He has not attached any value to the so-called supervision and management. The Court of Appeal gave him a chance to prove that he supervised and managed the houses; he failed to prove it. Then he was given a chance to show what the value of his contribution through time and energy was worth. It is our humble submissions that the plaintiff has failed to prove that he contributed to the value of the Plot No. X/71 and the house therein. Therefore, in the absence of any evidentiary prove of the contribution, this court is being invited to assume that the plaintiff has 50% stake in Plot No. X/71 which is wrong. It is the defendant’s submission that in the absence of the production of evidence, the Court of Appeal judgment does not compel this court to make a finding based on nothing. It is only after the plaintiff producing hard evidence that is when this court would have been compelled to apportion a share to the plaintiff. The plaintiff has simply failed to prove his case and therefore the case must fail. I have considered the evidence on record, rival submissions and do find that on 28th July 2023, the Court of Appeal applied Rule 33 of the Court of Appeal rules which empowers the court to remit the proceedings to the lower court with such directions as may be appropriate and make any necessary incident or consequential orders. The Court found that a constructive trust existed in favour of the plaintiff over both parties and directed this court to assess what was the percentage or value of that intent. In conclusion, the court found as follows:- 1. The judgment of ELC (A. Omollo J) dated 23rd January 2020 be and is hereby set aside. 2. Pursuant to Rule 33 of the Court of Appeal Rules, we remit the proceedings back to the ELC before a Judge other than A. Omollo, J. and direct that court to receive additional evidence to enable it assess and determine the value of the beneficial interest of the appellant and the respondent over Plot Nos. 59 and X/71, the suit properties. The Judge will thereupon proceed to enter judgment based on those findings. 3. The Deputy Registrar of this court to send a copy of the judgment to the Deputy Registrar of the ELC, Mombasa to place the file before the Duty Judge of that court for directions as to the fresh hearing and disposal in compliance with the directions we have given in this judgment. 4. As this is a family matter, we make no order as to costs. My duty according to the court of appeal order is to assess the beneficial interest of the plaintiff and defendant over plots Nos 59 and X/71. Starting with plot Number 59, the evidence on record and additional evidence is that Plot No. 59 was family property. The plaintiff had beneficial interest of the property though the defendant was the registered owner as found by the court of appeal. The plaintiff took a loan using the property as security and the defendant repaid the loan. The amount was Kshs3,250,000/=. At the time the loan was advanced the property was registered in the names of their mother. The property is valued Kshs 30,000,000 as per the valuation report produced by the plaintiff. The defendant did not produce any valuation report. There is no doubt that defendant has expended heavily in the development of the property. The plaintiff did not produce any evidence of expenditure other than the fact the he was managing and improving the property which was proved on a balance of probabilities. I do find that the Plaintiff testified at the re-hearing that he has been directly involved with Plot 59 since its formative years. During the re-hearing on 3rd February, 2026, the Plaintiff stated on oath that he personally supervised the construction of the ground floor and the first two storeys of the residential and commercial building erected thereon. He further stated that he resided in the property and managed it throughout. I do find that the plaintiff has contributed to the improvement of property that is ancestral to the parties, through supervision of the construction and management of the same and is therefore entitled to benefit from the income from the same. The defendant has been receiving rent and enjoying the property and therefore the court finds that she has recouped part of her investment on the property. This court orders that the plaintiff and the defendant to be registered as tenants in common with shares of 30 for the plaintiff and 70 for the defendant. The parties to share the rental income of this property from the date of filing the suit todate after deducting the relevant taxes and overheads. The plaintiff to refund the defendant Ksh .3,250,000/=construction. On Plot No. X 71, I do find that the plaintiff helped to improve and manage the property during construction. The plaintiff collected the rent and used the proceeds to manage the property. He also took care of their mother’s medical and other needs. The plaintiff occupied part of the building as his home and business. The plaintiff contributed time and energy on the building and improved of the value of the property. The plaintiff entirely supervised the construction of the property. I do find that the time and energy given by the plaintiff to the improvement of the property is invaluable. The plaintiff occupied part of the land as his home with his family and conducted business on the land. He collected rent from tenants and improved the property. I do find that the property should be registered in the names of plaintiff and defendant as tenants in common with a share of 30 for the plaintiff and 70 for the defendant. The share of the rent payable to the plaintiff to be calculated from the time of filing the suit to date of payment excluding taxes and the overheads. The order to take effect from the time of filing the suit. In conclusion, I do order that there be a joint current valuation of the two properties. The plaintiff to be awarded 30% of the land No. 59. The defendant be awarded 70%. The plaintiff is awarded 30% in Plot NO. 71. The defendant is awarded 70%. Both properties to be registered as joint tenancies with the plaintiff taking 30 % share whereas the defendant to take a 70% share. This order to operate from the date of filing the suit to dissolution of tenancy in common. The plaintiff to be paid 30% of the income of each property from the date of filling suit to date of payment. Parties to engage a firm of accountant to determine the rental income of the properties as above ordered. Each party to bear their costs this being a family dispute. Dated and Delivered this 31st Day of July 2026. SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ANTONY O. OMBWAYO** Mombasa Environment and Land Court Environment and Land Court Date: 2026-08-01 12:53:20