REPUBLIC OF KENYA
IN THE SUPREME COURT OF KENYA AT NAIROBI
(Coram: Mwilu; DCJ & VP, Ibrahim, Wanjala, Lenaola & Ouko, SCJJ)
APPLICATION NO. E009 OF 2023
―BETWEEN―
HENRY MULI MUNGUTI………….…….……………………. 1ST APPLICANT
HENRY MWAKE……………………………………………………2ND APPLICANT
DAVID NYUNGU...………………….…………………………….3RD APPLICANT
MICHAEL KIOKO…..……………………….…………………….4TH APPLICANT
PENINA MUMBE……………………………………………….…..5TH APPLICANT
ALICE WANGECI………………………………………………..….6TH APPLICANT
GOOD HOPE REHABILITATION CENTRE………………..7TH APPLICANT
-AND-
CYRUS ROBERT SALA ZIBU…………………………….….1ST RESPONDENT
DR. KLAUS-HERBERT RICHTER…………………..……2ND RESPONDENT
STEVE MAKAU…………………..……….…………………….3RD RESPONDENT
PETER KIMEU MWANGANI...…………………….…...…4TH RESPONDENT
LILIAN KATUNGE MUEMA…………………....………….5TH RESPONDENT
PETER MANG’ALA…………………………………..….…....6TH RESPONDENT
GIDEON KIOKO KIVANGULI……………………………..7TH RESPONDENT
PETER MUSAU……...………………………………………….8TH RESPONDENT
JUMA OLIVER MASILA…………………………….………..9TH RESPONDENT
MUTUKU KATALA...…………………………………………10TH RESPONDENT
NATIONAL LAND COMMISSION…………………….….11TH RESPONDENT
Application No. E009 of 2023 1
GOVERNMENT OF MAKUENI COUNTY…….……….12TH RESPONDENT
REGISTRAR OF SOCIETIES…………………………….…13TH RESPONDENT
HON. ATTORNEY GENERAL……………………………..14TH RESPONDENT
__________________________________________________
(Being an application for review of the decision of the Court of Appeal
(Okwengu, Ali-Aroni & Mativo, JJ.A) in Civil Application No. E260 of 2022,
delivered on 3rd February 2023, denying certification to appeal to the Supreme
Court against the Court of Appeal Judgment (Karanja, Murgor & Mohammed,
JJ.A.) in Civil Appeal No. 260 of 2018 delivered on 8th July 2022)
Representation:
Henia Anzala & Associates for the applicants
Munyithya, Mutugi, Umara, Muzna & Co. Advocates for 1st -9th respondents
RULING OF THE COURT
[1] UPON perusing the Originating Notice of Motion dated 28th February 2023
and filed on 31st March 2023 by the applicants, pursuant to Article 163(4)(b) of
the Constitution, Sections 15 and 16 of the Supreme Court Act, 2020 as well as Rule
33 of the Supreme Court Rules, 2020 seeking the review and setting aside of the
Court of Appeal decision in Civil Application No. E260 of 2022 delivered on 3rd
February 2023 declining leave to appeal to this Court; the grant of leave of this
Court to file an appeal against the judgment of the Court of Appeal in Civil Appeal
No. 260 of 2018, Henry Muli & Others v Cyrus Robert Sala Zibu & Others
delivered on 8th July 2022; the certification of their appeal as raising matters of
general public importance; and that the grant of leave do operate as a stay of
execution of the entire judgment and decree of 20th June 2018 in ELC Case No. 78
of 2017; and
[2] UPON perusing the affidavit sworn by Henry Muli Munguti on 28th February
2023 in support of the motion that gives a detailed account of the circumstances
that necessitated the taking out of aforesaid motion and;
Application No. E009 of 2023 2
[3] UPON considering the written submissions by the applicants filed on 31st
March 2023, wherein they have urged that the Judges of Appeal did not analyse
each of the framed issues and consider the arguments advanced for certification,
to the effect that the Supreme Court needs to clarify the law; whether the doctrine
of resulting trust can be imported into an express contract of sale and against
express provisions of Article 40 of the Constitution on the right to own property;
whether a court of law has jurisdiction to rely on a resulting trust to issue an order
in rem to cover and bind people that are not parties to the suit; whether a court of
law has jurisdiction to rely on a resulting trust to issue an order in rem to affect
properties and assets that are not specifically mentioned in a plaint or claim;
whether a court has jurisdiction to declare a resulting trust in favour of a third
party who is not the source of funds subject to the resulting trust; whether a court
of law has jurisdiction to declare a resulting trust with respect to positions held by
officials of a Society or directors of a company; and whether the jurisdiction of the
Environment and Land Court extends to documents, entities, funds and moveable
property “as matters related thereto”. In other words, it is the applicants’ argument
that the position relating to remedies available upon the finding of the existence of
a trust is unsettled; and
[4] UPON CONSIDERING that the 1st-9th respondents in their replying affidavit
of 5th April 2023 and written submissions of 13th February 2023 are opposed to the
application on the grounds that the issue at the centre of the dispute before the
trial court was the question of registration and control of Plot No. 3792 Mangelete
Settlement Scheme; that the issue of jurisdiction of the Environment and Land
Court, as framed in the instant application is an afterthought, the applicants having
failed to object to the transfer of the case from the High Court to the Environment
and Land Court and having fully participated in the proceedings throughout; that
the issues now raised by the applicants as forming matters of general public
importance are prima facie the same issues determined by the superior courts
below; that the respondents are now the registered members of the 7 th applicant
Application No. E009 of 2023 3
after they took over and changed the signatories of bank account relevant to these
proceedings and therefore an order for stay would be an academic exercise; that
the application does not meet the threshold established in the Hermanus
Phillipus Steyn v Giovanni Gnecchi-Ruscone; SC Application No. 4 of
2012; [2013] eKLR case because the appeal relates to private interests over land;
and as such the decision of the Court of Appeal ought to be upheld.
WE NOW THEREFORE OPINE as follows:
[5] RESTATING the principles governing applications for certification as
enunciated by the Court in Hermanus Phillipus Steyn; that the applicant must
satisfy the Court that the issue to be canvassed on appeal before the Court is one
the determination of which transcends the circumstances of the particular case,
and has a significant bearing on the public interest; where a point of law is raised,
that such a point is a substantial one the determination of which will have a
significant bearing on the public interest; the question or questions of law must
have arisen in the courts below and must have been the subject of judicial
determination; that where the certification is occasioned by a state of uncertainty
in the law arising from contradictory precedents, the Supreme Court may either
resolve the uncertainty or refer the matter to the Court of Appeal with appropriate
directions; that mere apprehension of miscarriage of justice is not a proper basis
for granting certification and the matter must still fall under Article 163(4)(b) of
the Constitution; that the applicant must identify and concisely set out the specific
elements of general public importance which he or she attributes to the matter for
certification; and that determinations of fact in contests between parties are not,
by themselves, a basis for granting certification for an appeal before the Supreme
Court; and
[6] UPON APPLYING these strictures to the rival submissions; on the one hand,
that the appeal raises matters of general public importance and that the Court of
Appeal did not consider the arguments raised by the applicants with respect to
resulting trusts, and on the other hand that the issues raised by the applicants as
Application No. E009 of 2023 4
forming matters of general public importance do not meet the threshold
established in the Hermanus Phillipus Steyn case because the appeal relates
to private interests over land; the single issue for consideration and determination
is whether the applicants have made a case to the satisfaction of the Court to
warrant us to review the decision of the Court of Appeal denying the applicants the
certificate to appeal to this Court; and
[7] UPON EXAMINING the record, it is inarguably clear that at the heart of the
dispute between the parties is the question of ownership of certain assets in the
form of immovable properties (plot numbers 3762, 3763, and 3792), money in the
bank, and control and management of the 7th applicant. The assets were allegedly
acquired using donor funds from the 2nd respondent and other donors; the 2nd
respondent remitted funds to the 1st applicant to register the 7th applicant as well
as to purchase land with a view to setting up a children’s home and drug addiction
rescue and rehabilitation centre; that the first two plots were registered in the
name of the 7th applicant while the latter property in the name of the 1st applicant;
and
[8] UPON DETERMINATION of these issues, the Environment and Land
Court held that the relationship between the 1st applicant and the 2nd respondent
resulted in the creation of an implied trust; that the 1st-6th applicants, who are the
officials of the 7th applicant, in the circumstances were trustees of the 2nd
respondent and his donor friends in respect to the subject plot, funds in the bank,
moveable and immoveable assets registered in the name of the 1st applicant, his
agents, spouse, servants and or appointees; that the implied trust between the 2nd
respondent and the 1st applicant graduated and became a public trust in which the
respondents and the people of Makueni County were beneficiaries of; a mandatory
injunction compelling the 1st applicant to register Plot No. 3792 in the name of the
7th applicant; and
[9] ON APPEAL, the Court of Appeal isolated four issues to consider; whether
the 2nd respondent demonstrated that the funds sent to the 1st applicant were
Application No. E009 of 2023 5
sourced from the former and his friends from Germany; whether the 7th applicant
received funds from other donors not connected to the 2nd respondent; whether a
resulting trust was created in favour of the 2nd respondent, over all funds, movable
and immovable assets respectively registered in the applicants’ and the 1st
applicant’s names, as well in the names of 1st applicant’s agents, spouse, servants
or appointees and; whether the orders made were within the jurisdiction of the
Environment and Land Court; and
[10] UPON CONSIDERING these issues, the appellate court found, just like the
trial court, that the 1st applicant bought the three plots in question with funds
remitted to him by the 2nd respondent and other donors connected to the 2nd
respondent; that the 1st applicant failed to present proof that he had purchased any
of the plots with funds from any other source; and that in registering one of the
plots in his name automatically created a resulting or implied trust in favour of the
2nd respondent from whom the funds in the form of donations for the purchase of
the plots originated; and
[11] UPON AFFIRMING further the trial court’s conclusions and bearing in
mind that the declaratory orders issued by that court concerned the issue of trust
over the subject plot and related assets, the appellate court was satisfied that the
Environment and Land Court had the jurisdiction under Article 162(2) of the
Constitution to entertain the dispute and determine it; and
[12] CONSIDERING the principles enunciated in Twalib Hatayan &
another v Said Saggar Ahmed Al-Heidy & 5 others; CA No. 51 of 2014;
[2015] eKLR that 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; that a resulting trust will
automatically arise in favour of the person who advances the purchase money; and
whether or not the property is registered in his name or that of another, is
immaterial; it is our view that the issues, as determined by the superior courts
below, are settled; and
Application No. E009 of 2023 6
[13] FURTHER SATISFIED that the courts below, besides the Court of Appeal’s
decision in Twalib Hatayan & another v Said Saggar (supra) have, in the
following cases, in a long list of others, firmly and consistently established the
above principles of a resulting trust; Peter Ndungu Njenga v Sophia Watiri
Ndungu; CA No. 2 of 2000; [2000] eKLR and Juletabi African Adventure
Limited & another v Christopher Michael Lockley; CA No. 75 of 2016;
[2017] eKLR and N W K v J K M & another; ELC No. 422 of 2011; [2013]
eKLR; and
[14] DISTINGUISHING the instant case from this Court’s decision in Shah &
7 others v Mombasa Bricks & Tiles Ltd & 5 others; SC Application No. 3
(E008) of 2022; [2022] eKLR, the issue raised by applicants in the latter was
whether it was open to the court to imply and import the doctrine of trust into land
sale transactions and into shareholding of a company as to disentitle the registered
holder of land or shares, respectively, obtained for valuable consideration without
offending the constitutional right to property under Article 40 of the Constitution
and other statutory provisions. On the other hand, in the former, the 1st applicant
is challenging the right to property with respect to a resulting trust having failed to
present proof that he had purchased any of the plots with funds other than those
from the 2nd respondent and his donor friends. Secondly, the remedy available as
a result of an implied trust was never an issue before the superior courts below. A
declaration of the existence of a resulting trust is itself a remedy in an action like
this one; and
[15] THEREFORE PERSUADED that no instance of state of uncertainty in the
law arising from contradictory precedents on the issues raised have been pointed
out to us; that the questions presented in the present application do not transcend
the circumstances of this particular case; and that the issues in dispute arise from
a private claim between the parties that resulted in a trust. Likewise, in the specific
circumstances of this case, we do not see any significant question of law that
requires further input from this Court. All the applicants are asking us to do, is to
Application No. E009 of 2023 7
grant them another opportunity to have a "third" bite at the cherry by revisiting
factual issues that have concurrently been resolved by the two courts below; and
[16] AND BEARING in mind that the two courts below us reached the
conclusion that, in view of the relationship between the parties herein, an implied
trust resulted; that decision being founded on pure evidence which pointed to the
fact that the 1st appellant was attempting to reap where he did not sow by insisting
“to derive personal benefits from projects that were intended to benefit
the less fortunate in the society”. Being conclusions based on facts, we are
precluded from attempting to reevaluate them; and
[17] IN THE CIRCUMSTANCES, we see no justification to disagree with the
determination of the Court of Appeal that the application has not passed the
threshold for the grant of leave to appeal to this Court pursuant to Article
163(4)(b); and
[18] THEREFORE, we dismiss this application and make the following orders:
a. The application dated 28th February 2023 and filed on 31st
March 2023 is hereby dismissed.
b. The decision of the Court of Appeal delivered on 3rd
February 2023, declining leave to appeal to this Court is
hereby affirmed.
c. The costs of this application shall be borne by the
applicants.
It is so Ordered.
DATED and DELIVERED at NAIROBI this 23rd day of June 2023.
…………………………………………………
P.M. MWILU
DEPUTY CHIEF JUSTICE & VICE PRESIDENT
OF THE SUPREME COURT
Application No. E009 of 2023 8
……………….…………………………………… ………………………………………….
M.K. IBRAHIM S.C. WANJALA
JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT
……………………………………….………….. ……………..………………………………….………
I. LENAOLA W. OUKO
JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT
I certify that this is a true copy
of the original
REGISTRAR
SUPREME COURT OF KENYA
Application No. E009 of 2023 9
