https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3026

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT KAJIADO** **ELC CASE NO. 185 OF 2018** **ALBERT OMARI ...……………….………….…………… PLAINTIFF** **VERSUS** **JOSEPH MBOYA AWINO ………………......... 1ST DEFENDANT** **BRANDEN SCHIELD …………………………….. 2ND DEFENDANT** (As Executors of the Estate of the late PATRICIA SCHIELD) **THE ATTORNEY GENERAL………… 1ST INTERESTED PARTY** **REGISTRAR OF TITLES,** **KAJIADO …………………..……………….2ND INTERESTED PARTY** **J U D G M E N T** 1. By the plaint dated 25th April 2014, amended on 30th March 2023, and Further Amended on the 19th July 2024,the Plaintiff claims that he is the registered owner of a parcel known as Kajiado/Kaputiei- North/14766 having purchased it on 30th March 2005 and registered in his favour on 8th April 2005. After the purchase, he took possession, developed it and carried out some farming activities. He claimed that at the time of the purchase, he had just married the late Patricia Schield. Due to fraudulent activities at the Lands Registry at the time, he, together with his wife, registered a caution against the suit property on 24th October 2005. 2. The 1st Defendant who was married to Patricia’s friend purchased the adjacent parcel of land. However, sometime in 2013, he trespassed on the Plaintiff’s property, demolished the fence and took away some items. This was on the claim that he was asserting ownership on behalf of the Estate of the late Patricia Schield . 3. He therefore sought the following reliefs; 4. **A permanent injunction restraining the defendants by themselves, agents, servants, or employees from interfering with the plaintiff’s quiet possession, ownership, trespassing and or in any other manner dealing with property Kajiado/ Kaputiei North/14766.** 5. **A declaration that the Plaintiff is the legal owner of title No. Kajiado/Kaputiei North/14766.** 6. **An order directed to the 2nd defendant to lift and/or cancel entry no. 7 on the land records for title no. Kajiado/Kaputiei North/14766.** 7. **An eviction order against the 1st defendant and/or his agents, servants, relatives or anyone else claiming through him.** 8. **General damages for trespass.** 9. **Mesne profits.** 10. **Costs of the suit and interest.** 11. Upon being served with the pleadings, the 1st Defendant filed a statement of defence and Counterclaim dated 16th June 2014, amended on 18th February 2015 and further Amended on 22nd September 2023 stated that he together with the 2nd Defendant were Executors of the late Patricia Schield’s Will and he was therefore legally defending her proprietary rights over the suit property. He contested the suit claiming that the Plaintiff purchased the suit property on behalf of the late Patricia Schield in the year 2005 but fraudulently registered it solely in his name. He claimed that the late Patricia transferred Kshs. 10,000,000 in an account jointly held between her and the Plaintiff to purchase the property and construct a school thereon. However, the Plaintiff used Kshs. 1,200,000 as the purchase price and misappropriated the rest about Kshs. 8,800,000. It was his case that the Plaintiff was holding the money in trust of the late Patricia and that he( Plaintiff) did not have the financial capacity to purchase the suit property. It was his case that he did not trespass onto the suit property because the late Patricia gave him access. He stated that due to Patricia’s ailment, it was hard for her to manage the property hence she assigned him the responsibility of managing it. 12. He further stated that the Plaintiff’s marriage to the late Patricia Schield was null and void because he was already married to someone else and this was one of the reasons she filed a divorce Petition which had not been concluded by the time of her demise. He further claimed that the suit property was not matrimonial property because it was purchased by funds solely from the late Patricia, which was part of her inheritance, and the Plaintiff did not contribute for the purchase. He also stated that upon the demise of Patricia the Plaintiff attempted to sell the suit property but he stopped him. 13. He therefore sought that the plaintiffs suit be dismissed and that the reliefs in his counterclaim be granted as follows:- 14. There be a declaration that the property Kajiado/Kaputiei North/14766 consisting 4.05Ha belongs to the Estate of the late Patricia Signe Schield. 15. Title Kajiado/Kaputiei North/14766 presently in the name Albert Omari be rectified and be registered in the name of the Seventh Day Adventist Church, Eastern Union Conference as per the late wishes of the late Patricia Schield. 16. The Plaintiff to execute the transfer documents to effect prayer (b) above, failure to which the transfer documents be executed by the Deputy Registrar of this Honourable Court. 17. This Honourable Court be pleased to give an order directing the Plaintiff to render accounts during trial; failure to which a declaration do issue that the Plaintiff be and is hereby held liable to pay a sum of Kshs. 8,800,000 to the Estate of the late Patricia Schield with interest and in the alternative buy ten Acres for use as a school as intended in the same locality. 18. Any such other or further relief as this Honourable . Court may deem fit and appropriate to make. 19. And the Plaintiff’s claim be dismissed with costs. 20. In response the plaintiff filed a reply to Amended defence and deferred to the Counter Claim dated 13th February 2020. **EVIDENCE OF THE PLAINTIFF** 1. PW1, Albert Omari, adopted his witness statement dated 25th April 2024 as his evidence in chief and produced his bundle of documents as exhibits in this case. He stated that he purchased the suit property in 2005 and that he did not acquire it fraudulently. He stated that he got married to the late Patricia Schield in the United State of America in 2005 and she was the custodian of all the documents. It was his testimony that she was aware of the ownership status of the suit property and that if she had any issues regarding the ownership, she would have filed a claim during her lifetime. He stated that the 1st defendant’s counterclaim ought to be dismissed since the suit property was legally his. He further stated that before the trespass and encroachment, he had begun constructing a school. He also stated that the 1st Defendant encroached on the land, and completed its construction. He acknowledged that the 1st defendant was the Executor of the late Patricia’s Will whose veracity is in question. 2. On cross examination,he admitted that his late wife- Patricia Schield registered a caution against the suit property to protect it from fraudsters as advised by one of their friends. He confirmed that he got married to Patricia Schield on the 29th January 2005 and produced the marriage certificate as as an exhibit. He confirmed that there was a school on the suit property and there was a notice board showing that the property was not for sale. When questioned about his employment status, he indicated that he was a teacher as well as a social worker although he did not produce any payslips. He also stated that he held a personal bank account as well as a joint account with his late wife at Kenya Commercial Bank. It was his testimony that they both deposited money in the joint account and made withdrawals from it and by January 2005 when they got married, USD 65,000 had been deposited in the joint account. He stated that he purchased the suit property on 30th March 2005 with his funds and the property was registered in his name. He also stated that the suit property was currently in possession of the 1st defendant. It was his testimony that the late Patricia Schield never filed a divorce petition to dissolve their marriage. He stated that he was not served with the pleadings in Divorce cause No. 147 of 2008. By the time of her demise on 22nd August 2008, the divorce proceedings, if any, were still pending, which means, she passed away while legally married to him. He stated that he did not take out letters of Administration in respect of her Estate because there was no property to administer. He also stated that he was not aware that she left, Will and if there was any, then he would apply to have it revoked. 3. On re-examinationhe reiterated that he acquired the suit property legally with funds from the joint account and that by the time they were getting married, the joint account was in existence. He maintained that Patricia Schield was still his legally married wife at the time of her demise. He denied that fraudulently registered the suit property in his sole name stating that if there was any contention, then the late Patricia Schield ought to have raised the same during her lifetime. **EVIDENCE OF THE DEFENDANTS** 1. DW1, Joseph Awino, the 1st Defendant and an Advocate of the High Court of Kenya adopted his witness statement dated 13th December 2024 as his evidence in chief. He also produced his bundle of documents which was marked as D. Exhibit 1-5 respectively. He stated that he had a Grant of Probate as the Executor of the Estate of the late Patricia Schield. It was his testimony that Patricia Schield left the documents with him sometime in March 2008 as she was planning to travel to the Czech Republic for treatment. He stated that Patricia Schield lodged a caution against the suit property and had filed for divorce from the Plaintiff. He claimed that in the divorce Petition, the late Patricia Schield cited fraud as the main reason. He also stated that she had filed Originating Summons to claim the suit property. It was his testimony that the funds used to purchase the suit property belonged to the late Patricia and that the Plaintiff did not contribute any money to the joint account. He stated that if Kshs.1,200,000 was used to purchase the suit property, the remaining Kshs. 8,800,000 should be refunded and that the Plaintiff’s name be cancelled and be replaced with that of the Patricia Schield. 2. On cross examinationhe stated that he was the one who drafted the late Patricia’s Will and that it was contested only four months prior to his testimony. He stated that the late Patricia’s wish was that the suit property be transferred in favour of the Seventh Day Adventist church. When asked about the bank statements, he confirmed that they were not certified and that only the Plaintiff could access them since he was the account holder. He also confirmed that when a person passes away, the suit abates. He admitted, that the Plaintiff was the late Patricia’s widower although he claimed that the marriage was a sham. He also stated that the voucher dated 3rd March 2005 from Florence Bank indicated the reason as purchase of land for school’ although he did not have a sale agreement as evidence of the purchase. He also acknowledged that at no point did Patricia report that her money had been misappropriated. He went on to state that the Seventh Day Adventist church was interested in the suit property and that he was approached by the Government to make the school public. He stated that the school had a provisional registration although he did not produce it in court. It was his testimony that he had no position in the school and it was Patricia’s friends and other donors who were funding the running of the school. 3. On re-examinationhe reiterated that the suit property was purchased using Patricia’s money and he was therefore challenging the proprietorship. He stated that while the Will did not indicate that Patricia was a member of the Seventh Day Adventist church, her intention was for the church to have it. 4. DW2 Branden Schield,the son of the late Patricia and an Executor of her Will adopted his witness statement dated 20th January 2024 as his evidence in chief. He stated that the suit property belonged to his mother having purchased it using proceeds from the sale of her house in Massachusetts. It was his testimony that there were letters from the bank confirming that the intention was to purchase a property. As such, the suit property should be revert to his late mother’s name to be utilised as a school as per her wishes. 5. On cross examination,he stated that his testimony was based on the bank records dated 16th May 2024 and that he was aware that his mother sold her house with the intention of buying land to construct a school. He stated that while he was aware that his mother purchased the suit property which she described as being in ‘Maasai land’ he was not aware whom she bought it from and did not have evidence that she purchased the suit property. He also acknowledged that the Plaintiff was married to his mother although he later learnt that the Plaintiff had other families prior to his marriage to his mother. He further stated that his mother complained that the Plaintiff had three other wives after his absence from their home. He stated that he met DW1, his mother’s friend, who later started helping her out with legal matters. He also stated that he was not aware that the suit property was registered in the name of the Plaintiff. 6. On re-examinationhe stated that the Plaintiff’s ownership of the suit property was in dispute and that he married his mother in bad faith with the intention of defrauding her. He stated that he was familiar with the running of the school but not familiar with the financial details. 7. DW3 Romney Schield**,** adopted his witness statement as his evidence in chief. He testified that his mother contributed financially to the purchase of the suit property and that before she passed on, she called DW1 and stated that she wanted him to complete the construction of the school for destitute children. He stated that was not aware that the suit property was registered in the Plaintiff’s name and if it was, then this was fraudulently done. 8. On cross examination,he stated that it was his belief that the Plaintiff murdered his mother by denying her money to cater for her medical expenses. He further stated that he was present when his mother passed away and she spoke to DW1 on phone and asked him to build the school. He could not recall the time and date when this happened and neither did he present call logs as evidence of this phone call. It was his testimony that the Plaintiff defrauded his mother. He admitted that he was aware they had a joint account. 9. On re-examinationhe stated that his mother did not have enough money to cater for her cancer treatment and she had informed him that the Plaintiff had refused to give her money. 10. DW4 Trinna Donelle Mboya,the 1st defendant’s wife, adopted her witness statement as her evidence in chief. She produced records of the school construction stating that she and her parents raised the money for the construction. 11. On cross examinationshe stated that she had been in Kenya from the year 2011 although construction of the school began much earlier. She stated that some buildings were constructed in 2013. It was her testimony that the property belonged to Patricia Schield although she had neither seen the title deed nor a sale agreement. She produced photographs showing what was on the suit property and others showing painting of partially constructed buildings. However, she stated that she was not involved in the process of getting construction approvals from the County Government. It was also her testimony that Patricia Schield was the Plaintiff’s ex-wife although she was not aware whether there was a decree confirming the divorce. She confirmed that the title held by the Plaintiff was a freehold title and that Patricia Schield was a foreigner although this did not mean that the land was not hers. 12. On re-examinationshe stated that Patricia intended to divorce the Plaintiff and also construct a school for destitute children in Isinya. 13. DW5 Lawrence Obuya,a contractor adopted his witness statement as his evidence in chief. 14. On cross examination,he stated that the 1st defendant introduced him to the, Board of Management of the school and engaged him to undertake construction which he began in the year 2013. He further stated that at the time, there was an existing foundation on the suit property. He said he saw the drawings although he was not aware whether they had been approved. It was his testimony that DW4 was the one paying him for the services although there are some services he offered for free such as labour. He stated that he was not aware whom the land belonged to, but the name Patricia Schield came up in discussions and he would later find out that she was the owner of the land and her vision was to have a school constructed thereon. He also stated that his engagement on the property was only construction and he was not aware of the management of the school. 15. On re-examinationhe stated that he did not see approvals for the construction but he saw the drawings and that he received instructions verbally without any written agreement. 16. DW6 Joyce Medukenya a social worker at Isinya adopted her witness statement as her evidence in chief. 17. On cross examinationshe stated that she was familiar with the 1st defendant who runs Schield Centre. She stated that part of her job was to rescue children and take them to that Centre. It was her belief that the Centre belongs to the 1st defendant and his wife DW4 and that earlier on, she used to see another ‘white’ lady. 18. At the close of the oral testimonies, parties filed their final written submissions. **SUBMISSIONS OF THE PLAINTIFF** 1. They are dated 15th July 2025. They raise three (3) issues for determination: - 2. Whether the Plaintiff has proved his case on balance of probability as against the Defendants? 3. Whether the 1st Defendant has any cause of action as against the Plaintiff in purchasing and acquisition of the title to the suit property. 4. Who should bear the costs. 5. Counsel submitted that the Plaintiff purchased the suit property on 30th March 2005 from Penwell Nyangweso Nyamweya and the same was registered in his name on 8th April 2005. It is submitted that the sale agreement and other related documents were not signed by Patricia Signe Schield ( Deceased). 6. It is further submitted that the 1st Defendant forcefully entered the suit property and look over the running the school, which act is tainted with illegality. That the principle privity of contract is well settled and the Defendants cannot claim the suit property. Reliance is placed on the case of ***Muriuki Vs Muriithi & 3 others (2025) KEELC 729 (KLR***) and **sections 24, 25 of the Land Registration Act, 2012.** 7. It is submitted that the documents in the Land Registry confirm that the Plaintiff is the registered owner and no other person with prior rights who have complained about his registration as the proprietor of the suit land. Reliance is placed as **section 26 of the Land Registration Act, 2012.** 8. It is also submitted that the claim that Kshs1,200,000/= used by the Plaintiff, to purchase the suit property belonged to Patricia Signe Schield has not been proved. The marriage between the Plaintiff with the Deceased was never dissolved as no Decree absolute has been produced. 9. It is submitted that the Defendants were not privy to the communication between the Plaintiff and the Deceased and as such they have no right to claim the suit property or Kshs8,000,000/=. 10. It is also submitted that the Defendants have not proved fraud, mistake, negligence or omission on the part of the Plaintiff. Reliance is placed on the case of ***S.O & Another Vs Nathan M Mutugu & Others (2019) eKLR; Muruka ( suing as the Administrator of the estate of Amondi Chwala- Deceased) Vs Awange (2024) KEELC 1516 (KLR)*** 11. He prays that the counter claim be dismissed and the prayers on the plaint be allowed with costs. **SUBMISSIONS OF THE 1ST AND 2ND DEFENDANTS** 1. On whether the Defendants have *locus standi* to challenge the ownership and the legality of registration of title number Title No.Kajiado/Kaputiei North/14766 in the name of the Plaintiff, it was submitted that if the Executor believes that land registered in another person’s name was improperly acquired or should form part of the estate, they can initiate legal proceedings to reclaim it citing **Haria (Suing as the Executor of the Will of Hasmukhlal Hirjibhai Haria) & Another v Gateru [2025) KEELC 484 (KLR).** 2. On whether the doctrine of resulting trust was applicable, it was submitted that the source of funds that purchased the suit property emanated from the late Patricia as evidenced. As such, there was resulting trust as held by the court of Appeal in **Archer & another v Archer & 2 others [2023] КЕCА 298 (KLR)** where it was stated that *a resulting trust will automatically arise in favour of the person who advances the purchase money, whether or not the property is registered in his or her name*. 3. Counsel went on to submit that save for the money used to purchase the suit property, the rest of the money deposited in the joint account by the late Patricia could not be accounted for by the Plaintiff. In addition, his haste withdrawals, at times up to six times a day were questionable. The funds were therefore diverted from what they were intended to do and it was submitted that this was breach of trust, which was akin to fraud, and the title should be cancelled. It was also argued that in Patricia’s Will dated 2008, her intention to control her assets was clear because she willed the school to the Seventh Day Adventist church. Reference was made to the case of ***Rose Naswa Masinde v Lilian Nekesa Simiyu Mukopt [2014] eKLR***, where the court held that *misuse of trust or deceit in obtaining registration constitutes fraud sufficient to invalidate title*. 4. On whether the doctrine of constructive trust was applicable in this dispute, it was submitted that the intention was for the suit property to be used as a school and not for personal gain. Therefore, constructive trust should be imposed to prevent the Plaintiff from unjust enrichment as held in ***Estroyo v Esiroyo [1973] EA 388***and***Walter Blasius v Emily Wanyoike [1997] KLR****.* 5. On whether the property was matrimonial property, it was submitted that for property acquired during a marriage to be considered matrimonial property, **Section 6 of the Matrimonial Property Act** requires proof of contribution, which the Plaintiff did not produce. Nonetheless, the property was purchased for a charitable cause, which removed it from the realm of domestic assets. It was also submitted that the divorce petition, which had been instituted by the late Patricia, was evidence of the broken marriage and it outlined fraud as some of the grounds for the petition. And since statements made by a deceased person were admissible if done in the ordinary course of business as per **Section 33(a) and (b) of the Evidence Act**, then her affidavit for the divorce petition was admissible. The Plaintiff should therefore not benefit from unjust enrichment citing **Bedford v Bedford (1852) 2 De G.M. & G. 711, 42 ER 124** and the Court should not sustain a transaction that offends public policy. 6. On whether the Counterclaim should succeed, it was submitted that there was evidence of resulting trust and the title held by the Plaintiff was held in trust for the late Patricia. As such, reliefs sought in the counterclaim should be granted together with costs. **ANALYSIS AND DETERMINATION** 1. I have considered the pleadings, the evidence on record, the written submissions, and the authorities cited. I find that the issues for determination are: 2. ***Whether the Plaintiff has established his case that the defendants are trespassers on his property; L.R No. Kajiado/Kaputiei- North/14766.*** 3. ***Whether the Plaintiff is entitled to the prayers sought in the further Amended plaint.*** 4. ***Whether the 1st and 2nd defendants have proved that the Plaintiff acquired property Kajiado/Kaputiei North/14766 fraudulently.*** 5. ***Whether the 1st and 2nd defendants are entitled to the prayers sought in the counterclaim.*** 6. ***Who should bear costs of the suit?*** 7. The dispute at hand revolves around the land known as LR No.Kajiado/Kaputiei North/14766 which the Plaintiff claims to be his, having purchased it in 2005 and registered in his favour. The Defendants contested this claim on grounds that the registration of the said property in the Plaintiff’s name was fraudulently undertaken. That he purchased it using funds from the late Patricia Schield hence it was to be registered in her name. 8. It is not in contention that the Plaintiff was married to Patricia Schield. The 1st defendant called the marriage a sham, but the evidence placed before court was that there was a valid marriage, until proven otherwise in a Court of competent jurisdiction. It is also not in contention that the Plaintiff and the late Patricia Schield had a joint account which the late Patricia transferred funds into. These are the funds that were used to purchase the suit property. However, there was no evidence tendered to prove that there was any fraud in how the money was withdrawn and in the purchase of the property. While the defendants have produced bank statements as proof that the Late Patricia Schield wired funds to the Plaintiff, and the allegation that the Plaintiff did not have a source of income, that is not proof of fraud. It is trite that fraud should not only be pleaded but must be strictly proved. See **Pamba Ong’weno Amila v John Juma Kutolo [2015] KECA 867 (KLR)**: ***“…*** ***The facts alleged to be fraudulent must be set out and evidence led thereon to prove fraudulent intent. The appellant did not demonstrate that the respondent fraudulently caused him to be registered as the proprietor of the suit land… We also bear in mind that allegations of fraud must be proved to a standard above balance of probabilities but below beyond reasonable doubt…”*** 1. The sale agreement between Albert Omari (plaintiff) and Penwell Nyangweso Nyamweya is dated 30th March 2005. The subject is the land known as Kajiado/Kaputiei North/14766 measuring Approximately 4.05 Hectares (10 Acres). 2. There is nothing to show that the said Albert Omari was purchasing the same on behalf of Patricia Signe Schield even though Kshs1,200,000/= appears to have been drawn from the joint Account Number 013-140321420 held at Kenya Commercial Bank. It should be noted that the bank statements from the bank are not certified. In fact, a representative from the bank swore an affidavit to state that the bank was not able to trace the documents as the account had been dormant for over thirteen (13) years. The statements relied on by the Defendants therefore are not certified. 1. It should be noted that Patricia Schield knew that the land was registered in the name of the plaintiff. She did not challenge the registration from the year 2005 upto her demise in 2008. She however caused a caution to be registered on the 4th October 2005 claiming beneficiary interest not purchaser’s interest. It has been held that, “registration of caution alone cannot create a registrable interest where there was none. The essence of registering a caution or a caveat is to act as a stop gap measure to enable the cautioner or caveatee to initiate action to establish his or her interest……” This was holding by Mutungi J in ***Ahmed Ibrahim Suleiman & Another Vs Noor Khamis Sunir (2013) eKLR.*** 1. There is nothing to show that Patricia Schield did not intend for the plaintiff to be registered as the owner of the suit property. The claim by the Defendants that the land was to be registered in her name has not been demonstrated. 2. It appears to the court that what the Defendants refer to as the wishes of the late, Patricia Shield amount to hear say. 3. It is said that Patricia Schield filed for divorce vide Divorce cause No.147 of 2008 at the Chief Magistrate’s Court at Milimani. The same was not prosecuted hence there is no decree dissolving the marriage. 4. By the time of Patricia Schield’s demise, the marriage subsisted. The claims by the Defendant’s that the Plaintiff had other families is neither here nor there as the same was not substantiated. 5. The upshot of the matter is that no evidence has been tendered to demonstrate that Patricia Schield did not intend for her husband (the Plaintiff) to be registered as the owner of the suit property. 6. No evidence has been presented to demonstrate that he (Plaintiff) was holding the land in trust for the late Patrica Schield. The issues of constructive or resulting trust is a matter of fact that has to be proved. I am of the view that it has not been proved. The Defendants have failed to prove that there was a common intention to have the suit property registered in the names of the Plaintiff and Patricia Signe Schield. 7. In the case of ***Twalib Hatayan & Another Vs Said Saggar Ahmed AL- Heidy & others (2015) eKLR***; the Court of Appeal examined and stated the Law on trusts as follows:- “According to Black’s Law Dictionary, 9th Edition, a trust is defined as “ 1. The right enforceable, solely in equity to the beneficial enjoyment of property to which another holds legal title; a property interest held by one person (trustee) at the request of another (settlor) for the benefit of a third party (beneficiary).” Under the Trustee Act “…… the expression “trust” and “trustee” extend to implied and constructive trust and cases where the trustee has a beneficial interest in the trust property….” In the absence of and express trust, we have trusts created by operation of the Law. These fall within two categories; constructive and resulting trusts. Given that the two are closely undertaken, it is perhaps pertinent to look at each of them in relation to the matter at hand. A constructive trust is an equitable remedy imposed by the court against one who has acquired property by wrong doing…. It arises where the intention of the parties cannot be ascertained. If the circumstances of the case are such as would demand that equity treats the legal owner as a trustee, that one will impose a trust. A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position for his own benefit (***see Halsbury’s Lavis of England supra at paragraph 1453)*** As earlier stated, with constructive trusts, proof of parties’ intention is immaterial for the trust will nonetheless be imposed by the law for the benefit of the settlor. Imposition of constructive trust is thus meant to guard against unjust enrichment….. 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… This trust may arise either upon the unexpressed but presumed intention of the Settlor or upon his informally expressed intention (**see Shell’s Equity 29th Edn Sweet & Maxwell. P 175)”** In the instant suit the fraud alleged by the Defendants has not been proved. I also find that neither constructive nor resulting trust arise. 1. It is my view that the Plaintiff has established on a balance of Probabilities that he is the registered owner of the suit property and that the Defendants are trespassers. However, I decline to award any general damages for trespass given the circumstances under which the 1st Defendant entered the suit property. I also decline to award mesne profits as the same was not proved. The same ought to be specifically pleaded and specifically proved. The court was not guided on the quantum. 2. It is the Defendant’s case that the suit property is part of the Estate of the late Patricia Signe Schield. It is also their case that the said Patricia Schield left a will and her wish was for the suit property to be registered in the name of Seventh Day Adventist church, Eastern Union Conference. 3. It is the Defendant’s case that the will was validated vide Nairobi High court Succession Cause No.2008 of 2009 whereby Joseph Mboya Awino and Branden Stuart Schield were named as Executors of the will. 4. The will purports to convey the suit property in favour of Seventh Day Adventist church, Eastern Union Conference yet the same was not registered on the name of Patricia Signe Schield. The issue is whether the suit property is part of the Assets of the Deceased and available for distribution. There is no evidence that the school on the suit property is registered with the Ministry of Education. There is no declaration from the said court that the suit property forms part of the estate of the later Patricia Signe Schield (Deceased). This court has no jurisdiction to make such a declaration. 5. In view of the Deceased could not confer to the Seventh Day Adventist church, Eastern Union Conference what she did not have in the first place. The suit property was registered in the plaintiff’s name. For the period before her demise, she did not challenge the said registration or assert her claim. The totality of what the Defendants have presented to be Patricia Schield’s wishes and intentions amount to hearsay. I find that the counter claim fails. 1. In conclusion, I find that the Plaintiff has proved his case as against the Defendants on a balance of probabilities and I enter judgment in his favour. 2. The final disposal orders are:- 3. **That a declaration be and is hereby issued that the Plaintiff is the legal owner of LR No.Kajiado/Kaputiei North /14766.** 4. **That a permanent injunction be and is hereby issued restraining the Defendants by themselves, their agents, servants and /or employees from interfering with the plaintiff’s quiet possession, ownership, trespassing or in any other manner dealing with LR NO.Kajiado/Kaputiei North/14766.** 5. **That the Land Registrar is hereby directed to lift and/or cancel entry No.7 on the Land Register for LR No.Kajiado/Kaputiei North /14766.** 6. **That the 1st Defendant his agents, servants and or any person claiming through him do vacate the land known as LR No.Kajiado/Kaputiei- North/14766 within one hundred and twenty (120 ) days from the date of this judgment.** **Failure to which the plaintiff do use lawful means to evict him.** 1. **That each party do bear own costs.** **Judgement dated, signed and delivered virtually at Nakuru this 14th day of May 2026.** **L KOMINGOI** **JUDGE** **In presence of :-** Mr Nzaku for the Plaintiff Mr Awino for Mr. S B Otieno for the Defendants Court Assistant: Derick