https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3665

Gakuru v Nguyai (Environment and Land Case E095 of 2022) [2026] KEELC 3665 (KLR) (15 June 2026) (Judgment) Neutral citation: [2026] KEELC 3665 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E095 of 2022 MN Kullow, J June 15, 2026 Between Betty Wanjiku Gakuru Plaintiff and Lewis Nguyai Defendant Judgment The Plaintiff’s Case 1.By a Plaint dated 14th March 2022, the Plaintiff herein instituted this suit against the Defendant seeking judgment for: Kshs. 61,200,000.00 being outstanding rent arrears; a declaration that LR No. 11805/9 belongs to the Plaintiff; an eviction order against the Defendant; temporary and permanent mandatory orders; damages; mesne profits; loss of use of the suit property; costs of the suit; and interest at court rates. 2.The Plaintiff pleaded that she is the lawful owner of Land Reference Number 11805/9 situated along Lower Kabete in Mugumo Lane, Nairobi. She averred that on or about 1st January 2005, the Defendant unlawfully entered and took possession of the suit property without her consent, authority, or any lawful justification. According to the Plaintiff, the Defendant's occupation of the property commenced as an act of trespass and has continued unabated ever since. 3.The Plaintiff further pleaded that following his entry onto the suit property, the Defendant remained in occupation thereof without paying any rent and without offering any explanation for his continued presence on the land. She contended that despite occupying the property for several years, the Defendant neither acknowledged her proprietary rights nor made any payments for his use and occupation of the suit premises. 4.It was the Plaintiff’s case that she made numerous requests to the Defendant requiring him to vacate the suit property, but the Defendant ignored and refused to comply. She further averred that the Defendant continued to erect and maintain structures on the land without her permission and without any lawful claim to the property. The Plaintiff maintained that the Defendant's actions amounted to a continuing infringement of her proprietary rights over the suit land. 5.The Plaintiff also pleaded that in or about the year 2008, she reported the matter to Kikuyu Police Station and Spring Valley Police Station in an effort to secure the Defendant's removal from the suit property. However, despite the intervention of police officers, the attempts to evict the Defendant were unsuccessful and he continued to occupy the land. She further accused the Defendant of employing unscrupulous means to evade liability while remaining in possession of the property. 6.The Plaintiff averred that the Defendant had sought to justify his occupation by claiming that the Plaintiff’s late husband, George J. Gakuru, had given him the suit property before his death. The Plaintiff disputed that assertion and maintained that the Defendant had no lawful interest in the land. She further contended that despite repeated demands, the Defendant had refused to vacate the property or remit rent, which she claimed had accumulated to Kshs. 61,200,000.00. 7.The Plaintiff further pleaded that despite making several requests for the Defendant to vacate the suit property and settle the outstanding rent arrears, the Defendant remained in occupation of LR No. 11805/9. She averred that on or about 2nd March 2022, her advocates, Rabala & Company Advocates, formally issued and served upon the Defendant a demand letter requiring him to either pay the alleged outstanding rent arrears amounting to Kshs. 61,200,000.00 or vacate the suit property. 8.According to the Plaintiff, the Defendant neither responded to the said demand nor took any steps to surrender possession of the land or remove the developments erected thereon. The Plaintiff therefore contended that the Defendant's continued occupation of the suit property was unlawful, thereby necessitating the institution of the present suit. The Defendants Case 9.The Defendant entered appearance and filed a Statement of Defence and Counterclaim dated 14th April 2022. Subsequently, with leave of the Court, he filed an Amended Statement of Defence and Counterclaim, in which he denied the Plaintiff’s claim and contended that he was lawfully entitled to occupy and own the suit property, namely LR No. 11805/9 situated along Lower Kabete in Mugumo Lane. 10.The Defendant admitted being in occupation of the suit property but disputed the Plaintiff’s assertion that he entered the land unlawfully in 2005. He averred that he had been in occupation of the property since 2001 and that his possession had been continuous, open and uninterrupted. He denied ever having a landlord tenant relationship with the Plaintiff and maintained that no rent was payable to her. 11.The Defendant further pleaded that the Plaintiff’s late husband, George J. Gakuru, had sold the suit property to him pursuant to a Sale Agreement dated 24th November 1999 for a purchase price of Kshs. 3,200,000.00. He averred that he had fully paid the purchase price and that the deceased acknowledged receipt thereof and undertook to facilitate transfer of the property. According to the Defendant, the transfer was never completed due to circumstances affecting the deceased’s advocates, notwithstanding that he had already taken possession of the land. 12.The Defendant also pleaded that he had extensively developed the suit property and had occupied it together with his family without interruption for over twelve (12) years. In the alternative, and without prejudice to his claim as purchaser, he contended that he had acquired ownership of the suit property by way of adverse possession, having remained in open, continuous, exclusive and adverse possession of the land for a period exceeding twelve years. He further averred that the Plaintiff had never been in possession of the suit property and that her claim was in any event statute-barred. 13.The Defendant additionally pleaded that the Plaintiff held the suit property in trust for him by virtue of the sale transaction and his occupation of the land. He set out particulars of a resulting trust, including payment of the full purchase price, acknowledgment of payment by the deceased proprietor, his assumption of possession as owner, and the developments he had undertaken on the land. 14.In his Amended Counterclaim, the Defendant prayed for a; a declaration that the Plaintiff held the suit property in trust for him; an order dissolving the trust and transferring the suit property to him; authorization of the Deputy Registrar to execute all necessary transfer documents; an order that he be registered as the sole and absolute proprietor of LR No. 11805/9; costs of the suit; and such further or other relief as the Court might deem just and expedient. The Hearing 15.The matter proceeded to hearing before this Court, with the Plaintiff testifying in support of her case as PW1. She adopted her witness statements and produced her bundle of documents as exhibits. Upon conclusion of her testimony, the Plaintiff closed her case without calling any additional witnesses. 16.The Defendant testified as DW1 and adopted his witness statements together with the documents contained in his trial bundle. In his testimony, he maintained that his occupation of the suit property was not unlawful and asserted that he had purchased the property from the late George Gakuru pursuant to a written sale agreement. He further testified regarding the payment of the purchase price, his possession and development of the property, and the circumstances giving rise to his counterclaim. 17.During the course of the proceedings, the Court conducted a site visit to the suit property in the presence of the parties and their advocates. The purpose of the visit was to enable the Court to appreciate the physical status of the property, the nature of the developments thereon, and the extent of the Defendant’s occupation and use of the land. The observations made during the visit formed part of the evidentiary record before the Court. 18.The defence case was further supported by the testimony of Jane Mbatia (DW2), Advocate, who testified regarding the transaction relating to the suit property. In addition, and by consent of the parties, the witness statements of Peter Njoroge Regeru, Kennedy Kubasu, and Samwel Kimani Kiarie were admitted into evidence without the makers being called for oral examination. Upon the close of the defence case, the Court directed the parties to file and exchange written submissions. Submissions 19.Upon the close of the hearing, the Court directed the parties to file and exchange written submissions. By a letter dated 26th January 2026, the Plaintiff's advocates requested to be supplied with typed proceedings to facilitate the preparation of the Plaintiff's submissions. Despite that request, no written submissions were subsequently filed on behalf of the Plaintiff and the matter proceeded on the basis of the pleadings, evidence and material on record. 20.The Defendant duly filed written submissions in support of his defence and counterclaim. In the submissions, the Defendant identified the following issues for determination: whether there existed a valid and enforceable sale agreement between the Defendant and the late George Gakuru in respect of the suit property; whether a resulting trust arose in favour of the Defendant upon payment of the purchase price; whether the Defendant had acquired title to the suit property by adverse possession; whether the Plaintiff had proved her claims for rent arrears, mesne profits, damages and loss of use; and whether the Plaintiff was entitled to the eviction and injunctive reliefs sought. 21.In support of those issues, the Defendant relied on, among other authorities, Getembe Prime Distributors v Orangi (Civil Appeal E056 of 2024) [2025] KEHC 3312 (KLR) on proof of fraud and forgery; Hatayan & Another v Al-Heidy & 5 Others (Civil Appeal No. 51 of 2014) [2015] eKLR on resulting trusts; Andafu v Akhulunya (Civil Appeal No. 70 of 2019) [2025] KECA 714 (KLR), Tilak Company Limited v Mageta Enterprises Limited (Civil Appeal E080 of 2021) [2024] KECA 342 (KLR) and Isaac Cypriano Shingore Vs Kipketer Togom [2016] eKLR on adverse possession; and Equity Bank Limited (Formerly Equity Building Society) Vs James Muraya Mahugu [2021] KEELC 1488 (KLR) on claims for mesne profits. The Court has considered the said submissions, the authorities cited and the entire record in arriving at its determination. Issues for Determination 22.Having considered the pleadings, the evidence adduced, and the submissions on record, the Court is of the view that the following issues arise for determination: -a.Whether the Defendant has established a legal or equitable interest in LR No. 11805/9 by virtue of the alleged sale agreement, resulting trust or constructive trust.b.Whether the parties are entitled to the reliefs sought in the Plaint and Counterclaim respectively. Analysis and Determination ISSUE NO :1 Whether the Defendant has established a legal or equitable interest in LR No. 11805/9 by virtue of the alleged sale agreement, resulting trust or constructive trust. 23.In determining this issue, the Court must first ascertain whether the Defendant proved the existence of a valid sale transaction between himself and the late George Gakuru in respect of LR No. 11805/9. The Defendant's case is that he purchased the suit property from the deceased pursuant to a Sale Agreement dated 24th March 1999 for a consideration of Kshs. 3,200,000/=, paid the purchase price in full and took possession of the property. The Plaintiff, on the other hand, disputed the alleged transaction and pleaded that the signature of the deceased appearing on the Sale Agreement and the acknowledgment of payment was forged. 24.The law relating to contracts for the disposition of an interest in land is found in Section 3(3) of the Law of Contract Act, which provides that no suit shall be brought upon a contract for the disposition of an interest in land unless the contract is in writing, signed by the parties thereto and the signatures are attested. The rationale for the provision is to ensure certainty and avoid disputes relating to transactions involving land. In Nelson Kivuvani v Yuda Komora & Another, Nairobi HCCC No. 956 of 1991, the Court held that: “the agreement for sale of land which contains the names of the parties, the number of the property, the purchase price and the conditions attached thereto, the obligations, express or implied, of each of the parties and signed and witnessed by two witnesses who signed against their names amounts to a valid contract." 25.The Court has carefully examined the Sale Agreement dated 24th March 1999 produced by the Defendant. The agreement identifies the vendor and purchaser, describes the suit property, sets out the purchase price and stipulates the obligations of the parties. Further, the agreement bears the signatures of the parties and was witnessed by advocates acting for them. Indeed, DW2, Jane Mbatia Advocate, who prepared and witnessed the agreement, testified before this Court and confirmed its execution. Her evidence on the preparation and execution of the agreement remained largely unshaken during cross-examination. 26.The Plaintiff challenged the authenticity of the agreement and pleaded forgery. It is however trite that allegations of fraud and forgery must not only be specifically pleaded but must also be strictly proved. In Vijay Morjaria Vs Nansingh Madhusingh Darbar & Another [2000] eKLR, the Court of Appeal held that allegations of fraud must be distinctly pleaded and distinctly proved, and that the standard of proof is higher than a balance of probabilities though not beyond reasonable doubt. A similar position was reiterated in Ndolo Vs Ndolo [2008] 1 KLR (G&F) 742 where the Court emphasized that fraud cannot be inferred from the facts and must be proved by cogent evidence. 27.While the Plaintiff pleaded that the deceased's signatures appearing on the Sale Agreement and the acknowledgment of payment were forged, no forensic document examiner was called to authenticate that assertion. Further, no expert report was produced comparing the disputed signatures with known signatures of the deceased. In the absence of expert evidence or any other cogent evidence demonstrating forgery, the Court is unable to find that the Defendant's documents were forged merely on the basis of the Plaintiff's allegation. The burden of proving forgery lay upon the Plaintiff and, in the Court's view, that burden was not discharged. 28.The Defendant further produced documentary evidence intended to demonstrate payment of the purchase price, including banking records, escrow account documents and a written acknowledgment allegedly executed by the deceased confirming receipt of the purchase price. The Defendant's evidence on payment was further supported by the witness statement of Peter Njoroge Regeru, SC, which was admitted by consent, and by the testimony of DW2. Although the Plaintiff challenged the validity of the transaction, she did not tender evidence capable of dislodging the documentary trail produced by the Defendant regarding payment. 29.Having considered the evidence as a whole, this Court is persuaded, on a balance of probabilities, that the Defendant has established the existence of a valid sale transaction between himself and the late George Gakuru in respect of the suit property and that substantial, if not complete, performance of the purchaser's obligations was demonstrated. 30.Having found as above, the next question is whether a trust arose in favour of the Defendant. In Hatayan & Another Vs Al-Heidy & 5 Others (Civil Appeal 51 of 2014) [2015] KECA 713 (KLR) (15 May 2015) (Judgment), the Court of Appeal held that where one person advances the purchase money for property which is registered in the name of another, a resulting trust ordinarily arises in favour of the person who provided the purchase money. The Court stated: “The general rule is 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 name or that of another is immaterial." 31.The evidence before Court demonstrates that the Defendant paid the consideration for the suit property, entered into possession and remained in occupation thereof for many years. Although the property was eventually transmitted and registered in the name of the Plaintiff as administrator of the estate of the deceased, such registration did not extinguish any equitable interest that may have accrued in favour of the Defendant. In the circumstances of this case, and considering the evidence of payment and possession, the Court finds that the Plaintiff holds the suit property subject to the Defendant's equitable interest arising from the transaction entered into with the deceased. 32.Accordingly, the Court finds and holds that the Defendant has established, on a balance of probabilities, a beneficial interest in LR No. 11805/9 arising from the sale transaction entered into with the late George Gakuru and that a resulting trust arose in his favour. ISSUE NO: 2 Whether the parties are entitled to the reliefs sought in the Plaint and Counterclaim respectively 33.Having found that the Defendant established a beneficial interest in LR No. 11805/9 arising from the sale transaction entered into with the late George Gakuru, this Court must now determine whether the reliefs sought in the Counterclaim are available to him. 34.The Defendant sought declarations that the Plaintiff holds the suit property in trust for him, that the said trust be dissolved and that the property be transferred to him. The Defendant further sought consequential orders to facilitate registration of the suit property in his name. 35.As already found by this Court, the Defendant established that he acquired an equitable interest in the suit property and that a resulting trust arose in his favour. In Hatayan & Another Vs Al-Heidy & 5 Others [2015] eKLR, the Court of Appeal held that a resulting trust arises in favour of a person who advances the purchase money notwithstanding that legal title may be held in the name of another person. 36.The effect of a resulting trust is that the registered proprietor holds the property for the benefit of the person in whose favour the trust arises. Accordingly, where a court is satisfied that a resulting trust has been established, it is entitled to grant appropriate relief to give effect to the beneficial interest proved before it. 37.Having found that the Defendant proved the existence of a resulting trust over the suit property, this Court is satisfied that the Defendant has proved the Counterclaim on a balance of probabilities. Disposition 38.Having now carefully considered the available evidence, this Court finds that the Defendant proved his Counterclaim on a balance of probabilities. Consequently, the Court enters Judgment for the Defendant against the Plaintiff in the following terms:-a.The Plaintiff's suit is hereby dismissed.b.A declaration is hereby issued that the Plaintiff holds LR No. 11805/9 in trust for the Defendant.c.The Plaintiff shall transfer LR No. 11805/9 to the Defendant within sixty (60) days from the date hereof, failing which the Deputy Registrar of this Court shall execute all documents necessary to effect the transfer.d.The Defendant is awarded the costs of the suit and the Counterclaim.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 15TH DAY OF JUNE, 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -Mr. Njagi .......... for the PlaintiffMr. Sikuku ......... for the DefendantPhilomena W........ Court Assistant