https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3635

Wakhuleka v Atsenga (Environment and Land Appeal E036 of 2023) [2026] KEELC 3635 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEELC 3635 (KLR) Republic of Kenya In the Environment and Land Court at Kakamega Environment and Land Appeal E036 of 2023 A Nyukuri, J June 3, 2026 Between Alphonce Shikuku Wakhuleka Appellant and Zipporah Atsenga Respondent (Being an appeal against the judgment of Hon. R..S Kipng’eno, (PM) delivered on 17th October 2023 in Butali ELC Case No. 29 of 2020) Judgment Introduction 1.This appeal arises from the judgment of Hon. R. S. Kipng’eno (PM) delivered on 17th October 2023 in Butali ELC Case No. 29 of 2020. In the impugned judgment, the trial court held that the respondent had proved that she purchased one acre of land out of the suit property, Land Parcel No. Kakamega/Lugari/1134 (suit property), in the year 1988 from the deceased registered owner, paid the full purchase price, and taken possession thereof. 2.The court further held that, by reason of that transaction and the respondent’s continued possession, a constructive trust had arisen in her favour. Consequently, the trial court found that the respondent was entitled to the said one acre, declined the appellant’s claim for eviction and injunctive relief, directed cancellation of the appellant’s title to enable effect to be given to the parties’ respective rights through the succession process while taking into account the interests of the purchasers, with each party bearing their own costs. Background 3.The suit before the trial court was commenced by the plaintiff, Alphonce Shikuku Wakhuleka, by way of a plaint dated 2oth July 2020, in which he stated that he was the registered proprietor of the suit property measuring approximately 0.91 hectares, having lawfully purchased the same from Mary Khasandi, Francis Owedo Nganyi and Justus Omenda Ebrahim. He pleaded that on or about the year 2012, the defendant, without his consent and without any color of right, unlawfully entered upon the suit property, constructed a house, and began residing thereon. 4.The plaintiff further stated that despite demand and notice of intention to sue, the defendant had refused to vacate the suit property. He therefore sought an order of eviction against the defendant, her properties, relatives, agents, servants and/or any other persons claiming through her from Land Parcel No. Kakamega/Lugari/1134, a permanent injunction restraining any further use of or interference with the ownership of the said parcel, mesne profits, costs of the suit, interest thereon, and such further or other relief as the court might deem fit to grant. 5.In response to the plaint, the defendant filed a statement of defence and counterclaim dated 10th August 2020 in which she denied the plaintiff’s claim and averred that the plaintiff had only purchased one acre out of the original parcel known as Lugari Scheme Plot No. 461 from one Mary Khasandi under an agreement dated 2nd August 1993, and not the entire parcel measuring 0.91 hectares as pleaded. 6.She asserted that the suit property belonged to three persons, namely the plaintiff, the defendant, and Justus Omenda Ebrahim, in the respective portions of one acre, one acre, and 0.249 acres. The defendant further contended that if the plaintiff had procured title over the whole parcel, then such title had been obtained through deceit, misrepresentation, and/or fraud. That she had been in occupation of her rightful one-acre portion since 1988, when her late husband, Asenga Mugusi, purchased the same from the original registered proprietor, one William Ngayi (now deceased), and that the allegation that she only entered the land in 2012 was false. 7.In the counterclaim, the defendant pleaded that the plaintiff had fraudulently and by way of falsehood, forgery, and misrepresentation caused the suit property to be transferred into his name to the exclusion of the other purchasers and/or beneficiaries of the estate of William Ngayi. She set out particulars of fraud including transfer of the land without letters of administration or confirmed grant, giving false information as to the status of the deceased, forging Land Control Board consent and transfer documents, enlarging his one-acre share to 2½ acres, colluding with lands officials, and misrepresenting himself as the sole person entitled to the entire parcel. 8.She further pleaded that her late husband had purchased one acre on 28th October 1988, but died before the transfer could be effected, and that the plaintiff only instituted the suit after she, through her son, lodged a complaint with the Directorate of Criminal Investigations concerning the alleged fraud. On that basis, she sought a declaration that she was entitled to one acre of the suit land, rectification of title No. Kakamega/Lugari/1134 to reflect the respective shares of the parties, or in the alternative, cancellation of the relevant entries in the register, together with costs of the suit and counterclaim. 9.The plaintiff thereafter filed a reply to defence and defence to counterclaim dated 4th April 2022 in which he reiterated the averments in the plaint and maintained that Land Parcel No. Kakamega/Lugari/1134 had been purchased from beneficiaries of the estate of William Ngayi, and not from Mary Khasandi alone. 10.He denied the defendant’s assertion that she had been on the suit property since 1988 and instead averred that she only encroached onto part of the land in 2012. That he had followed all the requisite succession procedures prior to acquiring the property, specifically denying the allegations of fraud, forgery, falsehood and misinterpretation. He also averred that the defendant had resorted to involving the Directorate of Criminal Investigations in an effort to intimidate him, but that the investigations carried out had absolved him of any wrongdoing and prayed that the defence and counterclaim be dismissed with costs. 11.The suit proceeded to hearing through viva voce evidence. The plaintiff testified as the only witness whereas the defendant called five witnesses in support of his case. Plaintiff’s evidence 12.PW1 was Alphonce Shikuku Wakhuleka, the plaintiff. He testified on oath that he was a farmer residing in Lugari and that he was the registered proprietor of Land Parcel No. Kakamega/Lugari/1134. That he purchased the suit property from one Justus Omenda and produced a copy of the title deed. That although the defendant had reported the matter to the Directorate of Criminal Investigations, investigations were conducted and no fraud was established against him. He also produced a letter dated 29th October 2019 as evidence. 13.On cross examination, he stated that he purchased the property in the year 1993 and that the transaction went through the Land Control Board in 1994, following which he obtained title thereto on 8th June 1994. He further stated that succession proceedings in respect of the estate of William Nganyi had been undertaken by Francis and Justus Nganyi in Succession Cause No. 147 of 1991 before the transfer was effected to him. 14.Further that he purchased one acre of the land in 1993 under a written agreement dated 2nd August 1993, though the agreement for the second portion had been lost. He testified that the transaction was witnessed by several persons. He further stated that he began staying on the property in 1991 but resided on a different parcel of land, and that he only became aware of the defendant’s occupation in the year 2017 while he was in Nairobi. That he thereafter reported the matter to the area chief. He further stated that surveyors visited the land, fixed boundary features, and that the defendant had constructed her house within his boundary. That marked the close of the plaintiff’s case. Defence evidence 15.DW1 was Zipporah Atsenga, the defendant. She adopted her witness statement filed in court on 11th August 2020 as her evidence in chief and testified that her late husband one Atsenga purchased one acre of land in the year 1988 from William Nganyi, the original owner of the suit property and that a written sale agreement was executed in respect of the transaction, which she produced in court. That upon purchase, her family took possession of the land, constructed a house thereon, and had since remained in quiet occupation. 16.On cross-examination, DW1 stated that the land had initially belonged to William Nganyi and that although the plaintiff later obtained title to the suit property, she had purchased her portion earlier. That she had lodged a complaint with the Directorate of Criminal Investigations regarding the land but was unaware whether the plaintiff had been charged in court. She further testified that she had remained in possession of the land since 1988 and maintained that she could not be dispossessed merely because she lacked a title deed. In re-examination, DW1 reiterated that her claim to the land arose from purchase and stated that the plaintiff could not lawfully acquire land which had already been sold to her husband. 17.DW2 was Samson Makanu Atsenga, a son to the defendant and the late Atsenga. He adopted his witness statement dated 6th December 2021 as his evidence in chief and testified that the suit property had been purchased by his late father in 1988, following which the family constructed their home thereon and settled on the land. He stated that the plaintiff only came onto the land much later and began causing disputes after the death of his father. He further testified that upon conducting inquiries at the Lands Registry in Kakamega, he discovered that his father had not been included among the beneficiaries or purchasers during the succession process, notwithstanding that the family had been in occupation of the land since 1988. 18.On cross-examination, DW2 stated that he was not personally present during the sale transaction but confirmed that he found records showing that the land had been subdivided into four portions by Francis Kwendo Nganyi and Justus Omenda, the sons of the deceased proprietor. He further testified that although his family had no title deed to their portion, they had purchased the land before the plaintiff and that the plaintiff ought to have pursued the administrators of the estate rather than seeking to evict them. 19.DW3 was Justus Omenda. He adopted his witness statement dated 6th December 2021 and testified that he knew both parties to the suit and that the defendant’s husband purchased one acre of land from his late father in 1988. That the plaintiff purchased a portion of land measuring one acre from his mother after his father had passed on. He stated that the transaction between his father and the defendant was in writing and produced the agreement, which he claimed he wrote. 20.He further testified that his family later commenced succession proceedings in respect of their late father’s estate and that although mutation forms were prepared in 1994, he did not sign any transfer documents relating to the transfer of the land to the plaintiff. He stated that when they later learnt that the plaintiff had obtained title to the entire land, they reported the matter to the Directorate of Criminal Investigations and the Assistant Chief. 21.On cross-examination, DW3 stated that succession proceedings were commenced in 1991 and confirmed that he and his brother were administrators of the estate. He admitted that they did not inform the defendant about the succession proceedings and stated that they had not sold any additional land to the plaintiff beyond what had originally been agreed. 22.DW4 was Francis Gwendo Nganyi. He adopted his witness statement dated 6th December 2021 and testified that the defendant purchased one acre of land from his late father before the plaintiff acquired his interest in the land. He stated that he personally witnessed the transaction between the defendant’s husband and his father. He further testified that the plaintiff initially cultivated land adjacent to the defendant’s portion as a lessee before later purchasing land from the deceased’s children. He stated that no title deeds had been issued at the time of the sale transactions and that during succession proceedings he and his brother later discovered that the plaintiff had caused the land to be subdivided into four portions. 23.On cross-examination, DW4 confirmed that he and his brother were administrators of the estate and that succession proceedings had been undertaken. However, that the confirmed grant did not include purchasers and further denied signing the mutation forms despite the forms bearing his name. In re-examination, DW4 stated that although purchasers had not been included in the succession proceedings, the intention had been to first obtain title and thereafter transfer the respective portions to the purchasers. 24.DW5 was Kenneth Atsenga. He adopted his witness statement dated 6th December 2021 and testified that the defendant’s family purchased one acre of land and had remained in occupation thereof since 1988 while awaiting completion of succession proceedings and transfer. He stated that the plaintiff initially cultivated land adjacent to their portion, measuring one acre, as a lessee which he later purchased in 1993. 25.On cross-examination, DW5 stated that the boundary features had been removed by the plaintiff and that although he was unaware whether the deceased’s sons sold additional land to the plaintiff, his family had continuously occupied the land since 1988. He further testified that the matter had been reported to the Directorate of Criminal Investigations, who requested the plaintiff to produce sale agreements. 26.He maintained that the plaintiff ought to pursue the administrators of the estate for compensation or alternative land if aggrieved. In re-examination, DW5 stated that the Nganyi family had never sought to evict the defendant’s family from the land and reiterated that the Directorate of Criminal Investigations had advised the plaintiff to pursue the administrators of the estate rather than interfere with the defendant’s occupation. That marked the close of the defence case. 27.Upon considering the pleadings, the witness statements and the evidence adduced at the trial by the parties, the trial court held that the defendant had proved that she purchased one acre out of Land Parcel No. Kakamega/Lugari/1134 from the deceased proprietor, and had remained in possession thereof ever since. The court further found that the respondent’s occupation was lawful and founded on a purchaser’s interest which arose long before the appellant acquired title to the suit property. 28.The trial court consequently held that a constructive trust had arisen in favour of the defendant, dismissed the plaintiff’s claim for eviction and permanent injunction, allowed the counterclaim to the extent of recognizing the defendant’s entitlement to one acre of the suit property, directed cancellation of the plaintiff’s title to facilitate proper distribution through the succession process while taking into account the interests of the purchasers, and ordered that each party bear their own costs. 29.Having been dissatisfied with the trial court’s decision, the appellant lodged the present appeal vide a Memorandum of appeal dated 17th November 2023, citing the following grounds of appeal:a.That the learned trial magistrate grossly erred in the evaluation of evidence before him.b.That the learned trial magistrate grossly erred in cancelling of title deed when there was no evidence of fraud on the part of the appellant.c.That the learned trial magistrate grossly erred in applying the doctrine of constructive trust in the case.d.That the learned trial magistrate final orders are not backed with any evidence.e.That the learned trial magistrate erred in not giving due weight to the sanctity of the appellant's title deed.f.That the learned trial magistrate final orders have occasioned a miscarriage of justice. 30.Consequently, the appellant prayed that the trial court judgment be set aside, his case in the lower court be allowed and the respondents to bear the costs of the appeal. 31.The appeal was canvassed by way of written submissions. On record are submissions by the appellant dated 12th June 2024, and submissions by the respondent dated 2nd October 2024; both of which this court has duly considered. Appellant’s submissions. 32.Counsel for the appellant submitted that the appellant’s case before the trial court was founded on his registered proprietorship of Land Parcel No. Kakamega/Lugari/1134, which he maintained he had lawfully purchased from Mary Khasandi, Francis Owedo Nganyi and Justus Omenda Ebrahim. That upon purchase, he took possession and utilized the land until the year 2012 when the respondent and her late husband allegedly entered the land without his consent and put up a dwelling house thereon. Counsel submitted that the appellant had produced before the trial court a copy of the title deed, certificate of official search and the letter from the Directorate of Criminal Investigations dated 29th October 2019 in support of his claim. 33.It was further contended on behalf of the appellant that the trial court misapprehended the evidence by finding that the respondent had purchased one acre of the suit property in 1988 from the original owner. Counsel argued that the alleged transaction was never completed since the vendor died before transfer could be effected. Further submissions were made that the court erred in finding that he had only farmed an adjacent acre which he later purchased in 1994, and in concluding that a larger portion had been registered in his name through the succession process. According to counsel, the trial court’s finding that a constructive trust existed in favour of the respondent was not supported by the evidence. 34.Counsel faulted the trial court for failing to give due regard to the sanctity of the appellant’s registered title. Counsel relied on section 26 of the Land Registration Act and submitted that a certificate of title was prima facie evidence of proprietorship and could only be challenged on grounds of fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme. It was contended that no fraud had been proved against the appellant and that the cancellation of his title was therefore erroneous. Respondent’s submissions 35.It was the submission of the respondent’s counsel that the respondent had proved her entitlement to one acre out of the suit property by producing a sale agreement dated 28th September 1988 showing that her late husband, Atsenga Mugusi, purchased one acre from Mary Khasandi for a consideration of Kshs. 22,500/=. counsel further submitted that the appellant’s own sale agreement dated 2nd March 1993 showed that he had purchased only one acre from the same seller, Mary Khasandi, and not the entire suit property. Counsel also pointed out that the evidence on record showed that another purchaser, Justus Omenda Ebrahim, had purchased a further portion measuring 0.249 acres. 36.On the appellant’s title, the respondent submitted that the appellant had merely relied on his title deed without demonstrating how he lawfully acquired the entire parcel. It was argued that he did not produce a sale agreement for the whole parcel and that the evidence suggested that he was only entitled to one acre. Counsel maintained that the appellant caused the whole land to be transferred into his name without notice to her, despite her family having purchased and occupied one acre since 1988. She submitted that the matter was reported to the Directorate of Criminal Investigations, where the appellant was summoned. 37.Further, that the trial court correctly found that a constructive trust had arisen in her favour as her late husband had purchased the one-acre portion, paid the purchase price, taken possession, and that the respondent and her family had lived on and developed the land since 1988. Counsel relied on Willy Kimutai Kitilit v Michael Kibet [2018] eKLR for the proposition that constructive trust and proprietary estoppel may operate to protect the interest of a purchaser who has paid the purchase price, taken possession and developed the land, notwithstanding the absence of formal transfer. 38.It was argued for the respondent that the trial court was right in finding that she was entitled to one acre out of the suit land and that the appellant’s title, to the extent that it covered the entire parcel to the exclusion of other purchasers, could not defeat her equitable interest. Analysis and determination 39.The court has carefully considered the instant appeal, parties’ rival submissions and the entire record. This being a first appeal, the duty of this court is to re-evaluate the evidence tendered before the trial court and make its own independent conclusions bearing in mind that it had no advantage of seeing or hearing witnesses and therefore make due allowance for that. 40.The duty of the first appellate court was discussed in the case of Gitobu Imanyara & 2 Others v. Attorney General [2016] eKLR, where the Court of Appeal stated as follows;‘‘An appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must consider the evidence, evaluate it itself and draw its own conclusions, although it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 41.From the grounds of appeal raised in the Memorandum of Appeal, two issues arise for the court’s determination, namely;a.Whether the trial court was right in applying the doctrine of constructive trust in favour of the respondent.b.Whether the trial court was right in cancelling the appellant’s title. 42.The fact that the appellant is the registered proprietor of the suit property is not disputed. In addition, the presence of the respondent on the suit property is confirmed. 43.Section 26 of the Land Registration Act provide for conclusiveness of title as follows;“Certificate of title to be held as conclusive evidence of proprietorship(1)The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—(a)On the ground of fraud or misrepresentation to which the person is proved to be a party; or(b)Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 44.Essentially, a registrered proprietor of land has absolute and indefeasible rights thereto, unless it is proved that such registration was acquired through fraud, misrepresentation, want of procedure, illegality or corruption. 45.Article 40 (6) of the Constitution of Kenya provides that the right to acquire and own property is protected only in regard to lawfully acquired property. Therefore, where the legality of a title is challenged, the owner is obligated to show that its root is clean. 46.In the case of Arthi Highway Developers Limited v West End Butchery Limited & 6 Others [2015] e KLR the court held that where a registered proprietor obtains title unlawfully, the same is not protected on the basis of indefeasibility of title. 47.Similarly, in the case of Dina Management Limited v County Government of Mombasa & 5 Others [2023] e KLR, the Supreme court of Kenya held that a defence of bona fide purchaser for value without notice of defect in title cannot legitimize a title obtained unlawfully. 48.In the instant case, the appellant pleaded that he was the registered proprietor of parcel No. Kakamega/Lugari/1134 measuring 0.91 Ha having lawfully purchased the same from Mary Khasandi, Francis Owedo Nganyi and Justus Omenda Ebraham. His complaint was that in 2012, the respondent unlawfully entered the suit property, constructed a house thereon and began living thereon. He therefore sought eviction and permanent injunction to restrain the respondent from using or interfering with the suit property. 49.The respondent on her part pleaded that on 2nd August 1993, the appellant purchased one acre from one Mary Khasandi to be hived from the parcel of land known as Lugari Scheme Plot No. 461. She denied the appellants allegation that the size purchased was 0.9 ha.(2.249 acres.) She maintained that in 1988, her late husband Asenga Mugusi purchased one acre of land from the original registered proprietor William Nganyi – deceased. Further that she began living on the suit property from 1988 and not 2012 as alleged. 50.She maintained that the suit property belonged to three persons namely; Alphonse Shikuku- 1 acre; Ziporah Atsenga 1 acre and Justus Omenda Ibrahim 0.249 acres. She concluded that at the time of sale of her land to the appellant, she was already the owner thereof and therefore the same was an illegality. She stated that the transfer of the suit property to the appellant was through fraud and specified particulars of fraud. 51.While the appellant did not disclose the circumstances surrounding his purchase transaction, in that he did not plead when he purchased the suit property or the consideration thereof, and whether those who sold it to him were registered proprietors, the respondent clarified that the appellant purchased one acre on 2nd August 1993 from one Mary Khasandi. In cross examination on being shown the sale agreement, the appellant conceded the same to be the sale agreement in respect of his purchase of the suit property and confirmed that in 1993 he purchased one acre. He also stated that the other agreement got lost but did not disclose when it was made or any other details. 52.As the acreage purchased was contested, the appellant having chosen not to produce the agreement that he says was not lost (agreement of 1993) it can only be deduced and inferred that the failure to produce was not in good faith and was intended to conceal the acreage of land purchased. In the premises, while title for the suit property shows that the land measures 0.9 hectares, the appellant failed to avail evidence of purchase of the acreage stated in the title. Thus, his title is not supported and it is clear that the title has more land than what the appellant purchased. I therefore find and hold that the appellant’s title was unlawfully obtained. 53.The respondent produced a sale agreement dated 1988 and maintained that she had been on the property even before the appellant purchased his one acre. Although the appellant alleged that the respondent entered the suit property in 2012, there was no evidence that he sought to stop the entry. In view of the fact that the appellant was swift in obtaining title, I do not think that he would take 8 years, even after being reported to the DCI to seek to assert his rights. I therefore believe the respondent’s testimony that the respondent entered the suit property in 1988, long before the appellant arrived. 54.The title for the suit property was not in existence in 1993 as the same was first registered on 8th June 1994. Although the appellant produced mutation form in respect of parcel No. 461, there was no green card for the same to know whether the mutation was signed by the registered proprietors. There was no evidence of application of the land Control Board. 55.The respondent having already purchased and occupied one-acre part of the suit property, the registration thereof in the name of the appellant was in trust for the respondent and it is only fair and just that the appellant transfers one acre to the respondent, as keeping the same will amount to unjust enrichment. Therefore, the trial court was right in concluding that the appellant held one care of land from the suit property in trust for the respondent. 56.In addition, the appellant did not avail any evidence to show that the plot sold to him included the ground occupied by the respondent. The respondent having been an earlier purchaser, the portion she occupies was not available for sale to the appellant and the appellant has not shown that he purchased the land occupied by the respondent. In the premises, the appellants title was unsupported. The appellant alleged to have obtained title from succession proceedings but no such succession proceedings were availed. As the appellants title was unsupported it was proper for cancellation. 57.The trial court ordered that the title for the suit property be cancelled and the same to revert to the deceased. That the plaintiff will get his rightful share from those heirs from whom he bought so that he is not prejudiced. That the appellants title is cancelled to enable the parties give effect to the orders made by court. Further that parties shall undertake succession process taking into account the rights of purchasers. 58.In view of the above orders, the trial court was wrong in ordering the parties to “undertake succession taking into account rights of purchasers” as the court as constituted was an Environment and Land court and not a Probate and Administration court; and therefore, those orders were made without jurisdiction. In addition, the “parties” who were being addressed to undertake succession are the alleged “heirs” who were not party to this suit and who cannot be ordered to do things in a matter where they were not parties. 59.Although the respondent sought for cancellation of entry Nos. 2 and 3 in the register of the suit property, no register was produced, and therefore this court cannot tell what constitutes entry Nos. 3 and 4 as alleged or at all, hence that prayer is incapable of being granted. The respondent also sought 0.249 acres to be transferred to one Justus Omenda Ebrahim. This person was a witness for the respondent and not a party to the suit. A witness has no stake in any proceedings apart from being given opportunity to testify. There was no locus standi on the part of the respondent to make a claim for the benefit of an adult who has the necessary capacity to bring suit on his own behalf if he so wishes, and therefore that claim fails. 60.In the premises, I find and hold that while the trial court was right in cancelling the appellant’s title, the court was wrong in ordering that it be subjected to succession. Therefore, I set aside the findings and conclusions made by the trial court and substitute them with an order dismissing the appellant’s claim before the lower court. I also order cancellation of the appellant’s title and order the appellant shall transfer one acre of land from parcel No. Kakamega/Lugari/1134 to the respondent. In default, the Deputy Registrar of this court is authorized to execute all transfer documents to vest one acre of land in the respondent’s name. Each party shall bear its own costs. 61.It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 3RD DAY OF JUNE, 2026A. NYUKURIJUDGEIn the presence of;Mr. Mondia for the appellantMr. Wabomba for the respondentCourt Assistant- Delphine