Automated Summary
Key Facts
The case involves a dispute between Rev. Jerad Alvan (plaintiff) and James N. Mbugua & John Karumba Chege (defendants as officials of the Gospel Disciples Society) over the existence of a trust for Iyale Academy on Plot GK/1551/Mikindani/Chaani. The plaintiff claims a 20-year lease (1992–2012) for the academy was secured via a 1993 trust declaration by Evangelische Zentralstelle for Entwicklungshilfe e.V (EZE). The court dismissed an injunction application to prevent forced eviction, ruling no valid trust was established despite prior agreements. Key background includes a 2005 and 2008 court action over the lease, and an unexecuted tripartite agreement between EZE, GDS, and Iyale Academy.
Issues
- Whether on the basis of the express declarations by the entity known as Evangelische Zentralstelle for Entwicklungshilfe e.v (EZE) there exists a trust in favour of the institution known as Iyale Academy in respect of the premises on Plot No. GK/1551/Mikindani/Chaani held by the defendant society.
- Whether the defendant society can in the circumstances terminate the occupancy of the above premises by the said Iyale Academy forcibly and/or without an order of court and/or without the consent of EZE as donor.
Holdings
- The court rejected the plaintiff's argument that the lease agreement between Iyale Academy and GDS could not override the alleged trust. It emphasized that an imperfect gift does not convert into a trust under the law, citing the principle from Paul v. Constance. The plaintiff's locus standi and the procedural validity of the originating summons were tentatively addressed but not dispositive of the main issues.
- The court found that the plaintiff failed to establish a prima facie case for the existence of a trust in favor of Iyale Academy on the suitland. The judge concluded that the unexecuted tripartite agreement and the 1993 letter from EZE did not create a valid trust, as the intended gift was not perfected and Iyale Academy remained a tenant, not the owner. The application for temporary injunction was dismissed with costs.
Remedies
The application of 15th February 2012 for an injunction is dismissed with costs.
Legal Principles
The court held that the unexecuted agreement and provisional arrangement between EZE and GDS did not create a valid trust. Citing Scarman L.J. in Paul v. Constance [1977], the court emphasized that if a settlement is intended to be effectuated by transfer, it cannot be converted into a declaration of trust. This aligns with the doctrine that imperfect instruments cannot be judicially reformed to create trusts, maintaining the requirement for formal execution of trust documents.
Precedent Name
- Benson Mwaliwa & 2 Others Trading as Iyale Academy -Vs- Rev. James Mbugua
- Iyale Academy -Vs- Jim Mugambi & 2 Others
- Paul -Vs- Constance
Cited Statute
- Constitution of Kenya
- Civil Procedure Rules 2010
Judge Name
F. Tuiyott
Passage Text
- The central question to be determined by the trial court is whether on the basis of the document dated 10th May 1993 and the conduct of the players herein an express or implied trust can be construed.
- It is therefore my respectful view that the Plaintiffs have failed to make out a prima facie case and is not deserving of the orders sought.
- From the evidence at hand this Gift from EZE to Iyale Academy was not perfected. The Gift appears to have failed and Iyale Academy became a tenant and not the owner of the premises.