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 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 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;  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
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;  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 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 February 28, 2023 and filed on March 31, 2023 is hereby dismissed.b.The decision of the Court of Appeal delivered on February 3, 2023, declining leave to appeal to this Court is hereby affirmed.c.The costs of this application shall be borne by the applicants.
19It is so Ordered.