Religious and charitable organisations often grow through donor funding rather than formal capital contribution. This creates a recurring legal problem: when the relationship between donor and local leadership breaks down, who owns the property the donations paid for? The Environment and Land Court at Kilgoris addressed this squarely in Mission SOS International Incorporated v Mission SOS Africa Inc & 3 Others [2026] KEELC 4990 (KLR).
The Dispute
Mission SOS International, a US-based donor organisation, funded the acquisition and development of four parcels of land in Transmara through wire transfers exceeding USD 1.5 million, believing its representatives had been absorbed into the leadership of the local society, Mission SOS Africa Inc. The properties were registered not in the plaintiff’s name, but in the names of the local society’s trustees. When the anticipated leadership change never materialised and the plaintiff’s nominees were shut out, it sued for a declaration of beneficial ownership, transfer of the properties and a permanent injunction. The defendants countered that the funds were unconditional donations and tithes, that the land was lawfully acquired and registered, and that a registered title under section 26(1) of the Land Registration Act is indefeasible absent proven fraud.
The Court’s Reasoning
The court had to decide whether the donor relationship gave rise to a gift, a resulting trust, or a constructive trust.
On the gift question, it applied the settled equitable principle drawn from Halsbury’s Laws of England (4th Edn, Vol 20) and endorsed in Twalib Hatayan & Another v Said Saggar Ahmed Al-Heidy & 5 Others that where one party pays the purchase price but title is taken in another’s name, there is prima facie no gift but a resulting trust in favour of the payer. This defeated the defendants’ characterisation of the funds as unconditional offertory.
The court then distinguished a resulting trust from a constructive trust under section 2 of the Trusts Act, again relying on Twalib Hatayan: a resulting trust arises automatically wherever purchase money is traced to a party other than the registered owner, regardless of registration. A constructive trust is instead an equitable remedy imposed against a wrongdoer to prevent unjust enrichment, applied where the parties’ actual intentions cannot be ascertained. Because the donations here were made on the specific, if informal, understanding that the plaintiff’s leadership would be incorporated into the defendant society, an understanding the defendants never honoured, the court found the defendants’ conduct amounted to unjust enrichment, and imposed a constructive trust rather than a resulting trust.
Crucially, the court confirmed that a constructive trust can override a registered title. It relied on the Supreme Court’s decision in Shah & 7 Others v Mombasa Bricks & Tiles Limited & 5 Others [2023] KESC 106 (KLR), which held that the doctrine of constructive trust is now settled in Kenyan land law and can be “imported into a land sale agreement to defeat a registered title” an approach it traced to Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri [2014] eKLR and Willy Kimutai Kitilit v Michael Kibet [2018] eKLR. This meant section 26 of the Land Registration Act and the indefeasibility cases the defendants relied on Wreck Motors Enterprises v Commissioner of Lands and R.G Patel v Lalji Makanji could not shield the registered proprietors once the constructive trust was established. The court also drew on William Charles Fryda v Assumption Sisters of Nairobi Registered Trustees & Another [2017] eKLR for the proposition that courts will give effect to a donor’s wishes over charitable property. Judgment was entered for the plaintiff on all four parcels, with a 90-day transfer order enforceable by the Deputy Registrar in default, an injunction, and costs.
The Takeaway for Donors and Institutions
The case is a caution to both sides of every donor-funded acquisition. Donors who fund land purchases without a written trust deed, MOU, or joint registration arrangement are not without remedy, but they are left to prove a constructive trust through inference, testimony, and reconstructed bank records, which is costly and uncertain. Local institutions that register donor-funded assets solely in their own name, without documenting the terms on which the funds were given, risk losing that property years later regardless of how the title reads.
How MMS Advocates LLP Can Help
MMS Advocates LLP advises religious, charitable, and donor-funded institutions on precisely this exposure, before it becomes litigation:
Structuring donor arrangements such as drafting trust deeds, MOUs, and grant agreements that state clearly whether funds are gifts, conditional donations, or contributions creating a beneficial interest, so intention never has to be reconstructed in court.
Governance and registration advisory by ensuring society leadership changes, board appointments, and property registrations follow the Societies Act and the institution’s own constitution, closing the gaps that produced the leadership dispute in this case.
Land and trust due diligence by verifying the chain of title, source of purchase funds, and any undocumented trust exposure before an institution accepts or registers donor-funded property.
Dispute resolution and litigation where a dispute has already crystallised, representing donors or institutions in constructive trust, resulting trust, or land recovery claims, including tracing donor funds through bank records as evidence.
Institutions that formalise donor relationships at the outset avoid the years of litigation, reputational damage, and asset uncertainty this case illustrates. MMS Advocates LLP structures that protection in advance.