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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 83 of 2017

Heartbeat Limited v Ng’ambwa Heartbeat Community Children’s Home & Rescue Center [2018] KECA 368 (KLR)

Court of Appeal of Kenya
12 July 2018
3,973 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal dismissed a children's home's land claim, ruling that trusts require clear proof of intention and contribution, but protected the children's continued occupation.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Visram, Karanja and Koome, JJ.A) allowed this first appeal against the judgment of Omollo, J. of the Environment and Land Court, which had declared that Heartbeat Limited purchased the suit parcels (Bura/Nyolo/886 and 887) in trust for the respondent children's home and ordered their transfer. The respondent claimed the appellant was incorporated by a Canadian organization to raise funds, purchase the land, and transfer it to the home. The trial court found a resulting trust. The Court of Appeal first held that the respondent had locus standi despite its registration certificate having expired in June 2011 before the suit was filed in May 2013, giving it the benefit of doubt that renewal was being processed and finding no evidence of cancellation of registration. On the merits, the Court restated the law on resulting trusts, noting that a resulting trust arises in favour of the person who advances the purchase money and that a trust will only be implied in cases of absolute necessity to give effect to the parties' clearly determined intention. The respondent, which never contributed to the purchase price, failed to prove a clear intention that the appellant would hold the parcels in trust: negotiations with Heartbeat Ministries never matured into an enforceable agreement, and neither the sale agreement, the Memorandum and Articles of Association, nor the settlement agreement referred to the respondent's benefit. The ELC judgment was set aside in its entirety and the respondent's suit dismissed. However, invoking the best interests of the child principle in Section 4(2) of the Children's Act, the Court directed that the occupation of the premises by the children should not be interrupted, and ordered each party to bear its own costs both at the ELC and on appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent had the requisite legal capacity (locus standi) to institute the suit in the ELC given the expiry of its registration certificate
  2. 2.Whether the issue of a resulting trust was pleaded and open for determination
  3. 3.Whether the evidence established a resulting trust in favour of the respondent over the suit parcels
  4. 4.Whether the learned Judge erred in admitting extrinsic evidence to vary the express terms of the sale agreement

Key legal issues

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01

Locus standi of a charitable children's institution whose registration certificate had expired at the time of filing suit

Holding

The respondent had the requisite standing; expiry of registration pending renewal did not render it a non-existent entity incapable of suing

Reasoning

The respondent was registered under Regulation 3(1) of the Children (Charitable Children's Institutions) Regulations, 2005. A letter from the County Coordinator, Children Services showed renewal was in process when the suit was filed, and there was no evidence of cancellation of registration under Regulation 3B. A subsequent letter also recognized the respondent as a charitable institution. The court gave the respondent the benefit of the doubt and held it had standing.

p. 4
02

Whether the pleadings supported a claim of implied/resulting trust

Holding

The respondent's claim was pleaded on the basis of an implied trust, specifically a resulting trust, so the learned Judge did not err in considering it

Reasoning

The appellant argued no resulting trust was pleaded. The Court, perusing the pleadings and evidence, found the respondent's claim was founded on an implied trust and sought a declaration that the parcels were held in trust. The Court saw no reason to fault the trial judge for considering whether such a trust had been created.

p. 4
03

Whether a resulting trust was proved in favour of the respondent

Holding

No resulting trust was established; the respondent failed to prove a clear intention that the appellant would hold the parcels in trust

Reasoning

Negotiations with Heartbeat Ministries did not materialize into an enforceable agreement; the respondent never contributed to the purchase price; the sale agreement, the appellant's Memorandum and Articles of Association, and the settlement agreement did not refer to any such intention. It was the respondent's word against the appellant's, and more was needed to establish a clear intention to create a trust.

p. 5

Legal principles established

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  • Courts will not imply a trust save in order to give effect to the intention of the parties, and only in case of absolute necessity
  • A party asserting a resulting trust bears the burden of proving it; the general rule is that a resulting trust arises in favour of the person who advances the purchase money
  • Parties are bound by their pleadings and a court can only pronounce judgment on issues arising from the pleadings
  • On a first appeal the Court of Appeal must re-appraise and re-examine all the evidence and arrive at its own independent conclusions

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the ELC dated 25th May 2017 set aside in its entirety
  3. 3.Substituted with an order dismissing the respondent's suit
  4. 4.Occupation of the suit premises by the children should not be interrupted
  5. 5.Each party to bear its own costs both at the ELC and in this appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
Martha Karambu Koome
M.K. KoomeJA
Currently serving
majority
On appeal from
Environment and Land Court at Mombasa
E.L.C No. 111 of 2013
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 29), re-appraisal of evidence

Relief refused

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Respondent's claim for declaration of trust and transfer of the suit parcels

Respondent failed to establish a clear intention that the appellant would hold the suit parcels in trust for it

p. 5

Costs

Each party to bear its own costs both at the ELC and in this appeal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot of the foregoing is that we find the appeal has merit and is hereby allowed. We hereby set aside the judgment dated 25 th May, 2017 in its entirety and substitute it with an order dismissing the respondent's suit.
p. 5Final orders - appeal allowed and ELC judgment set aside
we direct that the occupation of the suit premises by children should not be interrupted. This is in line with the provisions of Section 4 (2) of the Children's Act that enjoin courts of law to always bring to bear the best interest of the child when making a decision that affects them
p. 5Best interests of the child - protection of children's occupation
Accordingly we order each party to bear its own costs both at the ELC and in this appeal due to the nature of this matter
p. 5Costs order
A non-existent person cannot sue, and once the court is made aware that the plaintiff is non-existent, and therefore incapable of maintaining the action, it cannot allow the action to proceed.
p. 3Locus standi - non-existent person cannot sue (as cited)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Heartbeat Limited v Ng’ambwa Heartbeat Community Children’s Home & Rescue Center [2018] KECA 368 (KLR)", Case Analysis (2018). Civil Appeal No. 83 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/368/eng@2018-07-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.