https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5178

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC APPEAL NO. E049 OF 2025** **CAROLINE NIGHT MATENDECHERE……………………………APPELLANT** **VERSUS** **ERNEST ONGARO WASWA………………………………….1ST RESPONDENT** **DAVID INDAKWA……………………………………………...2ND RESPONDENT** *(Being an appeal from the judgment of Hon. Edwin Wasike, Principal Magistrate, delivered on 15 May 2025 in Butere MCELC No. E023 of 2021)* **JUDGMENT** **INTRODUCTION** 1. This appeal arises from the judgment delivered by Hon. Edwin Wasike, Principal Magistrate, on 15 May 2025 in Butere MCELC No. E023 of 2021. 2. The dispute traces its origin to an agreement made in July 2001 by which the 1st respondent agreed to sell two acres to the appellant’s late husband, James Matendechere Waswa, out of land parcel MARAMA/SHINAMWENYULI/1292 for Kshs. 120,000. 3. The proposed sale was unusual in one important respect. The 1st respondent was not the registered proprietor of the land. The property was then registered in the name of his father and was subsequently registered in the name of the 2nd respondent. The appellant nevertheless sought orders compelling the 2nd respondent first to transfer to the 1st respondent what she described as his rightful share of inheritance, after which the 1st respondent would transfer the purchased two acres to her. 4. The subordinate court dismissed the suit. It found, among other things, that the claim had been brought outside the statutory period and that the transaction could not be specifically enforced under the Land Control Act. 5. The appellant challenges that determination on the basis that the 2nd respondent held the property in trust, that limitation did not run against the trust, that the respondents admitted the sale and receipt of the purchase price, and that they should not benefit from their own obstruction of the transfer process. 6. The appeal requires the Court to determine the legal effect of the admitted sale, the capacity of the 1st respondent to sell the land, the alleged trust, the passage of time and the Land Control Board documents produced at the trial. **THE DUTY OF A FIRST APPELLATE COURT** 1. This being a first appeal, this Court is enjoined to reconsider and re-evaluate the evidence on record and arrive at its own independent conclusions, while bearing in mind that it did not see or hear the witnesses testify. That duty was stated in ***Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123*** and has been consistently applied by our courts. 2. The Court is not bound to adopt either the trial court’s reasoning or the parties’ characterisation of the dispute. It must examine the pleadings; the evidence and the reliefs sought and determine whether the ultimate decision was supported by the law and the record. **FACTUAL AND PROCEDURAL BACKGROUND** 1. The original plaintiff, James Matendechere Waswa, instituted Butere MCELC No. E023 of 2021 by a plaint dated 9 July 2021. He died during the pendency of the suit. By an order made on 8 February 2022, his widow, Caroline Night Matendechere, was substituted as plaintiff. She later filed an amended plaint dated 20 September 2022. 2. The amended plaint pleaded that on 20 July 2001 the deceased agreed to purchase two acres out of MARAMA/SHINAMWENYULI/1292 from the 1st respondent at a consideration of Kshs. 120,000. It was alleged that Kshs. 100,000 was paid on 23 July 2001 and the balance was subsequently paid in instalments. 3. The appellant pleaded that the 2nd respondent was the elder brother of the 1st respondent, witnessed the agreement and held the 1st respondent’s share of the family land in trust. She maintained that the respondents frustrated completion even after criminal proceedings were instituted against them. 4. The appellant further pleaded that after serving a term of imprisonment, the 2nd respondent agreed to transfer the two acres. She relied on an application for Land Control Board consent and a letter of consent dated 19 May 2005, together with a letter from the District Officer dated 7 June 2005. 5. The amended plaint also referred to Kakamega Civil Suit No. 165 of 2006 allegedly instituted by the 1st respondent and his brothers against the 2nd respondent, and to cautions registered in 2004 and 2007. No final judgment or decree in that suit was produced establishing the 1st respondent’s entitlement to any identified portion of parcel 1292. 6. The reliefs sought were that the 2nd respondent be compelled to transfer to the 1st respondent his rightful share of inheritance; that the 1st respondent thereafter be compelled to transfer a resurveyed two acres to the appellant; and that costs and any other appropriate relief be granted. 7. The respondents resisted the suit. They admitted that the 1st respondent had entered into the sale agreement but disputed full payment of the purchase price. They further contended that the 1st respondent was not the registered proprietor, the transaction lacked timely Land Control Board consent, and the suit was barred by limitation. **THE EVIDENCE BEFORE THE SUBORDINATE COURT** 1. The appellant testified as PW1. She adopted the witness statement made by her deceased husband, the original purchaser, and produced the sale agreement together with the documents evidencing the subsequent payments and the steps taken towards completion of the transaction. Her evidence was that the deceased purchased two acres to be excised from land parcel number MARAMA/SHINAMWENYULI/1292 for a consideration of Kshs. 120,000, paid the agreed purchase price and was permitted to take possession of the purchased portion. She stated that, despite receiving the consideration and participating in the transaction, the respondents failed to complete the subdivision and transfer. She maintained that it would be unjust for the respondents to retain both the land and the purchase price and asked the court to compel them to transfer the two acres to her in her capacity as the legal representative of the deceased’s estate. 2. In cross-examination, the appellant acknowledged that she was not present when the sale agreement was executed and had not personally witnessed the payments made pursuant to it. Her evidence concerning the transaction was therefore derived from the documents and the information left by her deceased husband. She nevertheless maintained that the agreed purchase price was Kshs. 120,000. When referred to paragraph 7 of the amended plaint, she accepted that the pleaded subsequent instalments amounted to Kshs. 19,700. When added to the initial payment of Kshs. 100,000, the particularised payments totalled Kshs. 119,700, leaving an apparent difference of Kshs. 300. She did not produce a separate receipt specifically accounting for that difference but maintained that the purchase price had been paid in full. 3. The appellant nevertheless relied on the written agreement dated 21 December 2002, which she contended constituted an express acknowledgment by the parties that the purchase price had been paid in full. In her view, that acknowledgment resolved the apparent discrepancy of Kshs. 300 arising from the instalments particularised in the amended plaint. She further explained that some of the payments had not been made directly to the first respondent but had been transmitted through Jacob Malala Alumas on behalf of her deceased husband. She did not, however, call Jacob Malala Alumas as a witness to confirm the payments allegedly made through him or the circumstances in which he received and transmitted them. Her evidence on those particular payments therefore rested principally on the documentary record and the acknowledgment contained in the agreement of 21 December 2002.The appellant also acknowledged that the land was registered in the name of the respondents’ father when it was sold and was subsequently registered in the name of the 2nd respondent. She did not produce an official search or certified copy of the register showing the history, acreage, encumbrances or current status of the property. 4. The first respondent testified as DW1. He admitted entering into an agreement with the appellant’s deceased husband for the sale of two acres to be excised from land parcel number MARAMA/SHINAMWENYULI/1292 at an agreed consideration of Kshs. 120,000. He further admitted receiving the initial sum of Kshs. 100,000 but denied receiving any further payment towards the purchase price. He disputed the appellant’s assertion that subsequent instalments were transmitted to him through Jacob Malala Alumas, stating that he had neither instructed nor authorised Jacob Malala, or any other person, to receive money on his behalf. On that basis, he maintained that a balance of Kshs. 20,000 remained unpaid and that the purchaser had therefore not fully performed his obligations under the agreement. He did not, however, identify any written demand made for payment of the alleged balance or any proceedings instituted to recover it. 5. The 2nd respondent testified as DW2. He admitted witnessing the transaction between the deceased and the 1st respondent. He confirmed that parcel 1292 was initially registered in the name of their father and that he later became its registered proprietor. He also confirmed that he had been convicted in Butere Criminal Case No. 323 of 2004 concerning the property. DW2 supported the 1st respondent’s contention that the purchase price had not been paid in full. He nevertheless conceded that no documentary demand for the alleged balance of Kshs. 20,000 had been produced. **THE DECISION OF THE SUBORDINATE COURT** 1. The learned magistrate considered the sale agreement, the parties’ evidence, limitation and the Land Control Act. The court found that the transaction concerned agricultural land within a land control area and was subject to the statutory requirement for consent. 2. The trial court relied on ***David Sironga Ole Tukai v Francis Arap Muge & 2 others [2014] KECA 155 (KLR)*** for the proposition that a controlled transaction becomes void where the required consent is not obtained within six months, and that consideration paid under a void transaction is recoverable as a debt. 3. The court also found that the suit, instituted approximately twenty years after the agreement, was statute barred and ultimately dismissed it with costs. **THE GROUNDS OF APPEAL** 1. The memorandum of appeal dated 11 June 2025 contains ten grounds. They may conveniently be condensed into the following complaints: 1. The learned magistrate erred in finding the suit barred by limitation despite the alleged trust relationship; 2. The court failed to appreciate the fiduciary obligation allegedly owed by the 2nd respondent to the 1st respondent and, derivatively, to the appellant; 3. The court erred in holding that want of Land Control Board consent defeated the transaction without considering the respondents’ conduct and the application of equity; 4. The court failed to give sufficient weight to the alleged full payment, the respondents’ admissions and their criminal conviction; and 5. The court erred in dismissing the suit with costs instead of compelling the sequential transfers sought in the amended plaint. **THE PARTIES’ SUBMISSIONS ON APPEAL** 1. The appellant submitted that her claim was not barred by limitation because it was founded on a trust arising from the respondents’ receipt of the purchase price and their continued retention of the purchased portion. She relied on section 20(1)(b) of the Limitation of Actions Act, which excludes from the statutory limitation periods an action by a beneficiary to recover trust property, or its proceeds, from a trustee in possession of that property. She argued that, upon payment of the purchase price and the purchaser’s performance of the agreement, the respondents could no longer in good conscience retain the two acres for their own benefit but held them subject to a constructive trust in favour of the purchaser and, following his death, his estate. Relying on decisions concerning constructive and customary trusts, she contended that such trusts arise by operation of law from the parties’ dealings and the circumstances of the case and are not defeated merely by the passage of time. She therefore urged the court to find that section 7 of the Act did not extinguish the claim and that the deceased’s estate remained entitled to recovery and transfer of the two acres. 2. She argued that the 2nd respondent held the land in constructive trust for the 1st respondent, that the respondents admitted the sale, and that their criminal conviction confirmed their interference with the transaction. She further submitted that the respondents deliberately obstructed the transfer and should not be allowed to rely on the absence of consent or other formalities to defeat the sale. 3. The respondents submitted that the appellant’s cause of action arose from the sale agreement entered into in 2001, whereas the suit was not instituted until 2021, approximately twenty years later. They contended that, insofar as the claim sought enforcement of the agreement, it was an action founded on contract and ought to have been commenced within the six-year period prescribed by section 4(1)(a) of the Limitation of Actions Act. They further argued that, viewed as a claim for recovery of the two acres, it was subject to the twelve-year limitation period provided under section 7 of the Act. On either characterisation, they maintained that the applicable limitation period had expired long before the proceedings were commenced. They therefore submitted that the suit was statute-barred, that the trial court lacked a proper basis for granting the orders of transfer sought and that the appellant could not avoid limitation merely by subsequently describing the transaction as giving rise to a trust. 4. They further submitted that the 1st respondent had no title capable of passing to the deceased, that parcel 1292 was estate property, and that the nemo dat principle barred the claim. They argued that the transaction was void under the Land Control Act and that the appellant had not established full payment, possession, a trust or an entitlement to specific performance. **ISSUES FOR DETERMINATION** 1. Having reconsidered the pleadings, the evidence, the impugned judgment and the parties’ submissions, the following issues arise for determination: 1. Whether the 1st respondent had a transferable interest in parcel MARAMA/SHINAMWENYULI/1292; 2. Whether the appellant established the pleaded trust and whether section 20 of the Limitation of Actions Act applied; 3. Whether the suit was otherwise barred by limitation; 4. What was the legal effect of the Land Control Board documents and the equitable doctrines invoked by the appellant; 5. What effect should be given to the alleged payment, admissions and criminal conviction; and 6. What orders ought to issue. **WHETHER THE ABSENCE OF REGISTERED TITLE IN THE 1ST RESPONDENT DEFEATED THE APPELLANT’S CLAIM** 1. It was common ground that when the agreement was made in 2001 the 1st respondent was not the registered proprietor of parcel MARAMA/SHINAMWENYULI/1292. The land was then registered in the name of the respondents’ father and was subsequently registered in the name of the 2nd respondent. 2. Ordinarily, the principle expressed in the maxim *nemo dat quod non habet* would prevent the 1st respondent from transferring a better title than he possessed. If the case rested only upon the agreement between the deceased purchaser and the 1st respondent, that principle would present a formidable obstacle. 3. The case does not, however, rest upon the conduct of the 1st respondent alone. The 2nd respondent witnessed the sale agreement. He knew that the deceased purchaser had paid money for two acres out of parcel 1292. After he became the registered proprietor, he participated in steps intended to facilitate the transfer, including the application for Land Control Board consent and the consent documents dated 19 May 2005. 4. The 2nd respondent also admitted that he was convicted in Butere Criminal Case No. 323 of 2004 in proceedings concerning the same transaction and parcel of land. Although the criminal conviction did not by itself transfer title, it formed part of the continuing course of conduct demonstrating his knowledge of the purchaser’s claim. 5. A registered proprietor who acquires title with knowledge that a purchaser has paid for a defined interest, and who thereafter participates in steps towards perfecting that interest, cannot be treated in the same manner as an innocent proprietor who was a stranger to the transaction. 6. The question is therefore not simply whether the 1st respondent possessed legal title in 2001. The more complete inquiry is whether, having regard to the respondents’ common knowledge, receipt and retention of the consideration, subsequent acquisition of title and conduct towards completion, it would be unconscionable for the 2nd respondent to assert absolute ownership of the whole parcel against the appellant. **THE CONSTITUTIONAL AND EQUITABLE FRAMEWORK** 1. The Constitution requires courts to interpret and apply the law in a manner that promotes its values and purposes. Article 10(2)(b) identifies equity and social justice among the national values and principles of governance. Article 159(2)(d) requires justice to be administered without undue regard to procedural technicalities, while Article 159(2)(e) requires courts to protect and promote the purposes and principles of the Constitution. 2. Those provisions do not authorise a court to disregard an Act of Parliament. They do, however, require statutory provisions to be interpreted within the constitutional order and prevent a party from converting a protective statute into an instrument of fraud, oppression or unjust enrichment. 3. The tension between the mandatory provisions of the Land Control Act and the equitable doctrines of constructive trust and proprietary estoppel has generated two lines of authority. In ***David Sironga Ole Tukai v Francis Arap Muge & 2 others [2014] KECA 155 (KLR)***, the Court of Appeal adopted a strict construction of the Act and held that equity could not validate a transaction rendered void by statute. 4. In ***Macharia Mwangi Maina & 87 others v Davidson Mwangi Kagiri [2014] eKLR***, the Court of Appeal held that a constructive trust relating to land subject to the Land Control Act was enforceable where purchasers had paid the price and the vendor’s conduct made it inequitable to deny their interests. 5. The later decision in ***Willy Kimutai Kitilit v Michael Kibet [2018] KECA 573 (KLR)*** examined both lines of authority. The Court held that constructive trust and proprietary estoppel may apply to a transaction affected by the Land Control Act, depending upon the circumstances of the particular case. It emphasised that equity is a constitutional value under Article 10(2)(b) and that the Act must be construed consistently with the Constitution. 6. The Court of Appeal has further explained that the Land Control Act was not intended to be an instrument for unjust enrichment or a refuge for a mala fide vendor. In those circumstances, a constructive trust operates to prevent one party from retaining an enrichment obtained at the expense of another through unconscionable conduct. 7. The Supreme Court has now given the doctrine firmer constitutional and jurisprudential footing. In ***Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others (Petition 18 (E020) of 2022) [2023] KESC 106 (KLR)***, the Court affirmed that a constructive trust may arise in connection with legal title where the holder conducts himself in a manner that denies another party a beneficial interest which, in justice and good conscience, ought to be recognised. Such a trust may be imposed to prevent unjust enrichment and may affect registered title. 8. The Supreme Court’s pronouncement is binding upon this Court under Article 163(7) of the Constitution. The controlling question is therefore whether the evidence discloses the circumstances necessary for the imposition of a constructive trust. In answering that question, the court must look beyond the formal invalidity of the transaction and examine the substance of the parties’ dealings. The absence or lateness of land control consent does not, by itself, establish a constructive trust or entitle the court to enforce a transaction prohibited by statute. A trust arises only where the evidence demonstrates payment or other substantial performance, the acquisition or retention of a corresponding benefit by the legal owner, and conduct that would make it unconscionable for that owner to deny the claimant’s beneficial interest. Where those circumstances are proved, the court does not validate the void agreement as such; it recognises and enforces an independent equitable obligation imposed by law to prevent fraud or unjust enrichment. It is against that framework that the evidence in this appeal must be evaluated. **WHETHER THE EVIDENCE ESTABLISHED A CONSTRUCTIVE TRUST** 1. A constructive trust is not founded upon the presumed subjective intention of the parties. It is imposed by law when a person holding legal title would be acting unconscionably by denying another person’s beneficial interest. Its purpose is to prevent the legal owner from retaining an unjust enrichment. 2. The relevant circumstances must be considered cumulatively rather than in isolation. First, the existence of the sale is admitted. DW1 acknowledged that he sold two acres out of parcel 1292 to the deceased purchaser for Kshs. 120,000. DW2 acknowledged witnessing that transaction. 3. Secondly, the documentary evidence supports the appellant’s contention that the purchase price was ultimately treated as paid. While the initial instalments particularised in the amended plaint totalled Kshs. 119,700, the appellant relied on the later agreement dated 21 December 2002 which acknowledged completion of the consideration. 4. Against that documentary acknowledgment, the respondents asserted orally that Kshs. 20,000 remained unpaid. That assertion was inconsistent with the initial payment of Kshs. 100,000 and the subsequent instalment evidence. It was also unsupported by any demand, suit or contemporaneous acknowledgment of debt during the approximately twenty years preceding the trial. 5. The 1st respondent admitted that he had never instituted proceedings to recover the alleged balance. DW2 similarly conceded that there was no documentary demand for it. On a balance of probabilities, I find that the consideration was paid and accepted as complete. 6. Thirdly, the 2nd respondent was not an innocent third party. He witnessed the agreement, knew its subject matter, later became the registered proprietor and participated in the steps intended to effect the transfer. The Land Control Board application and letter of consent of 19 May 2005 are significant, not because they were necessarily obtained within the statutory period, but because they evidence acknowledgment by the persons concerned that the purchaser’s claim to the two acres ought to be completed. 7. Fourthly, the respondents retained the entire benefit of the transaction. The purchaser and, after his death, his estate received neither the two acres nor a refund of the purchase price. The respondents did not tender repayment, deposit the admitted sum in court or counterclaim for rescission on terms of restitution. 8. Fifthly, the deceased purchaser persistently asserted his interest. The record refers to the criminal proceedings, the attempted Land Control Board process, the District Officer’s letter, the cautions registered in 2004 and 2007, the related civil proceedings and the eventual institution of the suit. The delay was therefore not evidence that the purchaser abandoned the transaction; it was substantially associated with repeated but incomplete efforts to secure performance. 9. Those circumstances disclose enrichment of the respondents through retention of the purchase price and the land, a corresponding deprivation of the purchaser’s estate, and the absence of any juristic reason why both benefits should be retained. To permit that result would be to allow statutory form to protect precisely the kind of unconscionable enrichment which constructive trust exists to prevent. 10. I accordingly find that when the 2nd respondent acquired and retained registered title with knowledge of the completed sale and the purchaser’s claim, he became a constructive trustee of the two-acre interest for the deceased purchaser and, upon the purchaser’s death, for his estate. **WHETHER LIMITATION DEFEATED THE TRUST** 1. The respondents relied on sections 4 and 7 of the Limitation of Actions Act. If the appellant’s claim were confined to specific performance of the 2001 agreement, the contractual limitation period would present substantial difficulty. If it were simply an action to recover land, section 7 would also require careful application. 2. The claim, however, was pleaded and prosecuted on the basis that the 2nd respondent held the property in trust. Having found that a constructive trust arose from the respondents’ cumulative conduct, the limitation question must be determined within that juridical framework. 3. Section 20(1)(b) of the Limitation of Actions Act provides that no period of limitation prescribed by the Act applies to an action by a beneficiary under a trust to recover trust property or its proceeds from a trustee in possession of the property or proceeds. The constructive trustee’s obligation is continuing while he retains the trust property and denies the beneficiary’s interest. 4. The appellant sues as the legal representative of the deceased purchaser’s estate. She therefore claims through the person for whose benefit the constructive trust arose. Her claim is not a collateral attempt to litigate the 1st respondent’s inheritance; it is an assertion of the purchaser’s direct equitable interest against the person who acquired title with knowledge of that interest. 5. The prolonged history of demands, cautions, criminal proceedings and attempted administrative completion also makes it inequitable for the respondents to rely upon delay that was materially prolonged by their own promises and conduct. 6. I consequently find that the learned magistrate erred in treating the claim solely as an ordinary contractual or land-recovery action and in failing to determine the pleaded trust. Section 20 applied to the constructive trust established by the evidence. **THE EFFECT OF THE LAND CONTROL ACT** 1. The transaction concerned agricultural land and was therefore subject to the Land Control Act. The application and consent dated 19 May 2005 were made outside six months from the agreement and no prior order extending time was produced. The trial court was therefore entitled to question the validity of the consent as statutory consent to the original sale. 2. That conclusion did not dispose of the separate equitable interest arising from the subsequent conduct of the respondents. A constructive trust is imposed by operation of law to prevent the registered holder from acting unconscionably. It is not a judicial extension of the expired agreement or a declaration that the statutory consent was obtained in time. 3. ***Willy Kimutai Kitilit*** makes clear that, depending on the circumstances, the doctrines of constructive trust and proprietary estoppel may operate even where the underlying controlled transaction became void***. Shah v Mombasa Bricks*** confirms at the highest level that constructive trust may affect registered title to prevent unjust enrichment. 4. The present case falls within that equitable jurisdiction. The 2nd respondent’s title was acquired and retained with full knowledge of the sale; the price was accepted; later steps were taken towards transfer; and no restitution was made. Invoking the Land Control Act to retain both benefits would subvert, rather than advance, the purpose of the law. 5. The Land Control Act therefore did not bar the Court from recognising and enforcing the constructive trust proved on the facts. Any current statutory approvals required to survey, subdivide and transfer the two-acre portion remain matters of implementation and must be pursued in accordance with the law. **THE EFFECT OF THE CRIMINAL CONVICTION AND THE RESPONDENTS’ ADMISSIONS** 1. The criminal conviction did not itself convey the land. Under section 47A of the Evidence Act, however, the final conviction was conclusive evidence that the convicted person committed the offence for which he was convicted, subject to the terms of that provision. DW2’s admission of the conviction reinforced the evidence that the transaction and interference with its completion were not inventions made for the purposes of the civil suit. 2. The respondents’ admissions were equally material. They admitted the agreement, the identity of the parcel, the two-acre portion, the agreed price, DW2’s presence as a witness and the later registration of the land in his name. Their only substantial factual resistance concerned the alleged unpaid balance, which I have found was not proved against the documentary acknowledgment of completion and the absence of any contemporaneous demand. 3. The learned magistrate did not give adequate cumulative weight to those admissions and to the respondents’ subsequent conduct. By treating the Land Control Act and limitation as complete answers, the court failed to consider whether strict reliance upon those provisions would facilitate unconscionable retention of both the land and the consideration. **THE APPROPRIATE RELIEF** 1. The appellant prayed for sequential orders requiring the 2nd respondent to transfer the 1st respondent’s share of inheritance and thereafter requiring the 1st respondent to transfer two acres to her. The evidence and the constructive trust found by this Court permit a more direct and legally coherent remedy. 2. The constructive trust binds the 2nd respondent as the admitted registered proprietor and operates directly in favour of the estate of the deceased purchaser. It is therefore unnecessary to determine or distribute the 1st respondent’s inheritance from his father. Such succession questions are avoided rather than decided. 3. Under section 78 of the Civil Procedure Act, this Court has substantially the same powers and duties as the trial court and may make any order that ought to have been made. The amended plaint sought transfer of the two acres and included a prayer for any other relief the court considered fit. The facts giving rise to the trust were pleaded, the 2nd respondent answered them and both parties led evidence on the transaction and title. A declaration and enforcement of the constructive trust do not introduce a new cause of action. 4. There is, however, no current official search, certified register or survey before this Court showing the present configuration of parcel 1292, the interests presently registered against it or the location of the two acres intended by the parties. The final implementation should therefore be supervised by the subordinate court after production of current land records and a surveyor’s report, with an opportunity to hear any person whose registered interest may be directly affected. 5. The remit will be limited. The finding that a constructive trust exists and that the appellant is entitled to two acres shall not be reopened. The subordinate court will only identify the portion, ensure compliance with current survey and land-control requirements, address any necessary joinder arising from the current register, and settle the consequential instruments and timelines for transfer. **OVERALL DETERMINATION** 1. Upon my independent reconsideration of the record, I find that the learned magistrate approached the dispute too narrowly. The court correctly recognised the statutory difficulties affecting the original agreement but failed to consider the constitutional and equitable consequences of allowing the respondents to retain both the purchase price and the land after their sustained participation in the transaction and the attempted completion process. 2. The evidence established a constructive trust over two acres out of MARAMA/SHINAMWENYULI/1292 in favour of the estate of James Matendechere Waswa. The trust arose by operation of law when the 2nd respondent acquired and retained title with knowledge of the completed sale and thereafter denied the purchaser’s beneficial interest without making restitution. 3. The appeal is therefore meritorious. **COSTS** 1. The appellant has succeeded in the appeal. The prolonged dispute arose substantially from the respondents’ failure either to complete the transfer or return the consideration. Under section 27 of the Civil Procedure Act, the appellant is entitled to the costs of the appeal and of the proceedings before the subordinate court. **DISPOSITION** 1. Consequently, I make the following orders: 1. The appeal is allowed. 2. The judgment and decree of the Principal Magistrate’s Court at Butere delivered on 15 May 2025 in Butere MCELC No. E023 of 2021 are set aside. 3. It is declared that the 2nd respondent holds two acres out of land parcel MARAMA/SHINAMWENYULI/1292 in constructive trust for the estate of James Matendechere Waswa, represented by the appellant. 4. The appellant is entitled, in her capacity as the legal representative of the estate of James Matendechere Waswa, to transfer and registration of the said two acres. 5. Butere MCELC No. E023 of 2021 is remitted to the Principal Magistrate’s Court at Butere solely for supervision and implementation of the trust, including production of the current register, identification and survey of the two-acre portion, compliance with current land-control and subdivision requirements, joinder of any person shown by the current register to hold an interest that may be directly affected, and settlement and execution of the consequential transfer instruments. 6. For the avoidance of doubt, the existence of the constructive trust and the appellant’s entitlement to two acres shall not be reopened upon remittal. 7. The respondents shall execute all applications, consents, mutation forms, transfer instruments and other documents necessary to give effect to these orders within the timelines fixed by the subordinate court. In default, the Deputy Registrar or other authorised officer of the court shall execute the necessary instruments on their behalf. 8. The costs of this appeal and of the suit before the subordinate court are awarded to the appellant. It is so ordered. DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT KAKAMEGA THIS 21ST DAY OF JULY 2026. **P. MUSYIMI** **JUDGE** **In the presence of:** Mr. Kevin Ombima: Court Assistant Ms. Mbetera h/b for Mr. Achero for the Appellant Ms. Najala for the Respondents