IMPLIED TRUST IN MARITAL PROPERTY: WHEN THE MARRIAGE IS STILL ALIVE

In my last blog post, we looked at the basics of implied trusts and how courts can sometimes presume them based on the conduct of the parties. Today, we’re going deeper. Using the case of Peter Ndungu Njenga v Sophia Watiri Ndungu [2000] eKLR, I’ll show you why the standard for proving an implied trust is so high. In this case, the court made it clear that such a trust will only be presumed when there is strong, necessary, and convincing evidence, it’s not something they decide on lightly. 

FACTS OF THE CASE 

The appellant, Peter Ndung'u Njenga, is the husband of the respondent, Sophia Watiri Ndungu. Their marriage was celebrated in 1952 according to Kikuyu customs. On August 23, 1993, the appellant married Mary Wanjiru Njogu at the Registrar's office in Nairobi, where he was described as "married under customary law". This second marriage appears to have initiated the legal proceedings. The case revolves around two parcels of land: NGONG/NGONG/3949 and KAJIADO/NGONG/432. The respondent occupies KAJIADO/NGONG/432 (approximately 10 acres), while the second wife occupies NGONG/NGONG/3949 (approximately 5 acres). Sophia (the first wife) claimed that both she and her husband had contributed money or effort to buy these pieces of land, even though the land was in his name. Importantly, Peter and Sophia were still legally married, and they weren't planning on getting a divorce during this case. 

The respondent's primary claim was that the court to declare that the appellant was keeping the properties for both of them, with each owning half. She said they had both contributed to getting the properties, so he was not the only owner. Her claim was based on the idea of an implied or resulting trust, meaning the court should recognise a shared ownership even though it wasn’t written down. 

 LEGAL ISSUES 

• Implied Trust: Could the court say that Peter (the husband) was holding the land "in trust" for both himself and Sophia (the first wife)? 
• Applicability of Legal Provisions: A main question in the case was whether the respondent could base her claim on Section 17 of the Married Women’s Property Act of 1882 (an English law) while also claiming there was an implied or resulting trust. In other words, the court had to decide if using that law and claiming a trust could work together in the same case.
• Jurisdiction over Matrimonial Property: Whether the High Court had the legal authority to divide or alienate land between spouses who were still alive and whose marriage was unbroken (unbroken coverture). 
• Errors Apparent on Record:Were there clear and obvious mistakes in the High Court's decision that needed to be corrected? 

PROCEDURAL HISTORY AT THE COURTS 

1. THE HIGH COURT 

The respondent sued the appellant seeking the court to declare that he held the land in trust for both of them, prevent him from selling it, and give her any other suitable help. The learned High Court Judge ruled in favour of the respondent. The judge found that the "plaintiff must have contributed to the purchase of the plots in question directly or indirectly". Consequently, the judge declared that the appellant held the plots in trust for himself and the respondent in specific proportions: one to two for NGONG/KAJIADO/43/2 and two to one for NGONG/NGONG/3949. The judge's reasoning included the respondent's payment of the entire purchase price for one plot and her substantial contribution to the children's education. The judge also noted that the case "ought to have...been brought under the provisions of Married Women's Property Act 1882". 

Peter didn't appeal directly at first. Instead, he asked the High Court judge to review his own decision under Order 44 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act. . He said there was an "error apparent on the face of the record" and that the suit was brought under "wrong 'legal provisions". The appeal to the Court of Appeal was "from the ruling of the High Court...dated 19th November, 1996". This implies that the High Court, in its ruling on the review application, either upheld the original judgment or did not grant the review as sought by the appellant, leading to the subsequent appeal. 

2. THE COURT OF APPEAL 

Peter took the case to the Court of Appeal to challenge the High Court's review ruling. 

THE COURT OF APPEAL'S HOLDING 

• The Court of Appeal allowed the appeal. 
• They set aside (cancelled) both the High Court's original judgment from May 10, 1996, and the High Court's review ruling from November 19, 1996. 
• The Court of Appeal dismissed the original case that Sophia had brought against Peter. This means Sophia's claim for a share of the land based on trust was thrown out. 
• Given that it was a family dispute, the Court of Appeal made "no orders as to costs"

THE COURT OF APPEAL'S REASONING 

• Nature of Implied Trust: The Court of Appeal explained that a court can assume there's an implied trust (meaning, an unwritten understanding about sharing property) but only when it's absolutely necessary. It's not an easy thing to assume, and a court should only imply a trust if it's clear that the people involved intended to create one. This "intention" must be very clear. They referred to a past case (Ayoub vs. Standard Bank of S.A) to support this rule.The High Court judge seemed to imply a trust based on general contributions, but the Court of Appeal felt the intention wasn't clearly determined enough. 
• High Court's Jurisdictional and Legal Errors (Errors Apparent on the Face of the Record): The Court of Appeal identified an "error apparent on the face of the record when the learned Judge proceeded to treat a claim made under an implied or resulting trust as a claim made under section 17 of the Married Women's Property Act of 1882 of England. In addition, the Court found it was an "error apparent on the face of the record when the learned Judge proceeded to divide the suit lands as if he was dealing with a succession cause when the appellant is still alive. The Court of Appeal emphatically held that the High Court had no jurisdiction to alienate suit lands between spouses during their life-time or unbroken coverture. The High Court erred in stating there was no evidence of customary law relating to property division between living spouses, implying such division is not typically permissible during their lifetime.
• Validity of Review Remedy: The Court of Appeal determined that the High Court's errors were so manifest (obvious) that the remedy of review was properly invoked by the appellant. 
•  Using Appellate Powers: Since the High Court clearly didn't have the power to decide the case the way it did, the Court of Appeal used its own authority to simply dismiss the original lawsuit outright, instead of sending it back for another hearing. They concluded that the High Court "ought to have dismissed the suit" from the start. 

This case reminds us that proving an implied trust, whether in marital property or in any other context, is never straightforward. The court will not simply assume that a trust exists; it must see clear evidence of the parties’ intention, and it will only presume such a trust in cases of absolute necessity. Catch you in the next blog! 

 

 

 

Disclaimer- The information provided is for general informational purposes only and should not be considered as professional advice. Please consult a qualified professional for specific guidance. 

REFERENCES 

Peter Ndungu Njenga v Sophia Watiri Ndungu [2000] eKLR. Court of Appeal at Nairobi, Civil Appeal No. 2 of 2000, judgment delivered 14 July 2000