https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4540

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELC APPEAL NO. E056 OF 2024** **GILBERT NJERU MUTURI........................................................APPELLANT** **VERSUS** **CECILIA WANJERU NJERU (Sued as the legal representative of the estate of the late MANASE NJERU ESBON alias MANASE NJERU alias MANASHE NJERU HESPHON...............................................……….......RESPONDENT** ***(Being an appeal from the Judgement of Hon. Stephen K. Ngii (PM) delivered on 28/11/2024 in Embu ELC Case No. 84 of 2018)*** **JUDGMENT** 1. The Respondent herein was the Plaintiff before the trial court wherein he had sued the Appellant vide a Plaint dated 17/05/2018 seeking interalia, withdrawal of the caution registered on land parcel No. Evurore/Nguthi/1663 or in the alternative, the District Land Registrar be ordered to remove the caution from the said land. 2. The Respondents case was that she is the legal representative of the registered owner of the suit land and that the Appellant lodged a caution against the said land without any justifiable cause thereby restricting her proprietary rights. She averred that despite repeated requests, the Appellant had failed to remove the caution. 3. The Appellant filed a further amended statement of defence and counterclaim dated 03/02/2022. He denied the Respondents averments in the Plaint and stated that he lodged the caution to protect his interest and not without any justifiable cause as alleged. He stated that he has been in occupation of the suit land since 1948 during land adjudication, had developed the land by planting fruits and artificial trees, built permanent residential houses and installed electricity and water. He averred that he had therefore acquired the land by way of adverse possession. He further stated that in 2001, the registered owner of the suit land approached him in order to sell the suit land to him and he paid all of the purchase price upon executing a sale agreement. 4. In the counterclaim, he sought interlia, a declaration that he had acquired the whole of the suit land measuring approximately 1.2 Ha by way of adverse possession; in the alternative, a declaration that the estate of Manase Njeru holds the suit land in trust for him; that the name of Manase Njeru be cancelled from the register of the suit land and be registered in the name of the Respondent; an order that the Respondent do execute a valid transfer instrument for the suit land in the Appellants favour and in default, the Executive Officer of this court be empowered to execute such transfer instrument. 5. The Respondent filed a response to the amended defence and counterclaim and denied that the Appellant had acquired the suit land by way of adverse possession. She averred that if there has been such occupation, the same has been unlawful, protracted and frequently disturbed and in clear infringement of the Respondent’s proprietorship rights. She averred that there was no sale of the suit land and that the alleged sale agreement was a forgery and fraudulent. She set out the particulars of fraud. She averred that adjudication only began in the 1970’s and not 1940’s as alleged. She stated that the suit land was the subject matter of several court cases which were all determined in favour of the deceased and other parties. 6. When the former suit came up for directions, the parties agreed to proceed with the hearing by way of viva voce evidence. 7. PW1, Cecilia Wanjeru Njeru testified that Manase Njeru was her husband and that they purchased the suit land together. She stated that Appellant had lodged a caution on her land. On cross examination, she stated that she was not aware that the Appellant paid any money over the suit land nor was she aware of any sale agreement made over the land. She produced in evidence, a confirmation of grant, an official search for land parcel 1663, a demand letter dated 28/03/2016, a copy of the green card for the suit land, judgements in Embu HCC No. 165 of 2008, Nyeri Court of Appeal Case No. 21 of 2013, Nyeri Court of Appeal Case No. 110 of 2011 and Embu JR No. 49 of 2014. 8. DW1, Gilbert Njeru adopted his written statements dated 14/10/2019 and 08/02/2022 as his evidence in chief. He stated that he wished to have the court order that he be given the land that he bought as he has lived there for over 30 years and has developed the land. On cross-examination, he stated that he bought the suit land from the deceased in 2001 when he made the first payment of the purchase price and that the deceased died in 2008 before attending the Land Control Board. That by the date of the deceased's death he had paid the purchase price in full. He admitted that the land was subject of Embu High Court Case No. 2509 of 1998 but stated that the case involved clans not himself. He also admitted that during adjudication of the area within which the land is situate the same was given to and registered in the name of the deceased. He didn't contest the adjudication but approached the deceased to sell him the land. 9. He also acknowledged that despite his evidence that he had paid the purchase price in full, the acknowledgement dated 20/9/2013 talks of a balance of Kshs 4,340/= which he never paid because he was never informed of the succession cause on which the money was to be spent. On re-examination he stated that the deceased delayed in transferring the land because there were discrepancies in the name of the deceased as indicated in the identity card and on the register. 10. He produced in evidence, a sale agreement dated 09/09/2001, an acknowledgement dated 15/12/2001, an agreement dated 20/09/2013, an official search, a caution dated 30/03/2005, a receipt dated 30/03/2005, an acknowledgement dated 15/02/2004 and photographs. 11. DW2, Daniel Mate Kivungo adopted his written statement dated 14/10/2019 as his evidence in chief. He stated that he was a witness to the sale transaction between the deceased and the Appellant over the suit land and witnessed payment of the purchase price. He stated that some of the purchase price was paid to the Respondent as her husband was already deceased and that the last payment was made for the purpose of doing succession as the Respondent claimed she had no money. He stated that the Respondent had been adamant to transfer the suit land from the time of death of her husband. On cross examination, he admitted that despite his evidence that he witnessed payment of purchase price by the Appellant to the Respondent, the sale agreement relied on by the defendant dated 9/9/2001 does not mention him anywhere. 12. The trial court in its judgement found both the Respondent’s suit and the Appellants counterclaim to be unmerited and dismissed the two suits with no orders as to costs. In arriving at that decision, the court made the findings that the deceased, Manase Njeru, was the registered owner of the suit land, the evidence of ownership having not been controverted. That the placement of the caution by the Appellant was justified, as the Appellant had established an interest in the land as a purchaser. The Court also found that the Appellant had not made a good case for declaration of ownership by way of adverse possession since his conduct recognized the deceased's title in the suit land and particularly, the conduct of approaching the deceased to sell him the suit land was proof that his occupation was never meant to adversely dispossess the deceased of the suit land. 13. On the issue of trust, the court found that the registration of the deceased as the owner of the suit land could not be subjected to any trust premised on a sale agreement which the Appellant was yet to fully perform. Equally the Court found that the Respondent could not evict the Appellant from the suit land since there was no evidence that the Appellant had breached the sale agreement. The trail Court formed the view that the determination of the dispute might lie in the Appellant settling the balance of the purchase price and asserting his claim in Siakago Succession Cause No. 38 of 2016 following the courts finding that he had an interest in the suit land as a purchaser. 14. The Appellant was aggrieved by the impugned decision and preferred the present Appeal on the following grounds; 15. The learned trial Magistrate erred in law and in fact when he held that the Appellant did not prove the case of adverse possession against the estate of the deceased Manase Njeru whereas the Appellant was able to prove all the principles of adverse possession on the subject land. 16. The learned trial Magistrate erred in law and in fact when he held that the Appellant conducted himself in a manner that recognized the title of the deceased by entering into a sale agreement with the deceased which is an erroneous finding. 17. The learned trial Magistrate erred in both law and in fact by making a finding that the registration of the deceased as the owner of the suit land could not be subjected to any trust and dismissing the Appellants claim on trust. 18. The learned trial magistrate erred in law and in fact by dismissing the Appellants counterclaim dated 03/02/2022 against the weight of the evidence. 19. The Appellant sought to have the appeal allowed, the judgement of the trial Court set aside and substituted with an order allowing the Appellants counterclaim with costs and that costs of the appeal and of the lower court case be awarded to the Appellant. 20. When the appeal came up for directions, the parties agreed to canvass the appeal by way of written submissions. The Appellant filed submissions dated 24/04/2026 through the firm of Muthoni Ndeke & Company Advocates. He submitted that trial court erred by dismissing the claim for adverse possession despite evidence that the Appellant and his family had occupied the suit land openly, continuously and uninterruptedly from the 1940s, well beyond the statutory period. The Appellant further contended that the trial court erred in finding that the 2001 sale agreement amounted to recognition of the deceased's title. It was submitted that by the time the agreement was executed, the Appellant's rights by adverse possession had already crystallized. 21. On the issue of trust, the Appellant submitted that the trial court erred in rejecting the claim for a constructive trust despite finding that the sale agreement was genuine and supported by acknowledgments of payment. It was argued that a constructive trust arose not from the completion of the agreement but from the conduct of the parties, their common intention and the equitable imperative to prevent injustice. The cases of Macharia Mwangi Maina & 87 others v Davidson Mwangi Kagiri Nyeri Civil Appeal No. 6 of 2011, William Kipsoi Sigei v Kipkoech Arusei & Anor (2019) Eklr among others were cited to support the submissions. 22. The Respondent filed submissions on 06/05/2026 in person. She submitted that the Appellant agreed in his testimony that the land was the subject of Embu High Court Case No. 2509 of 1998, and that everything was suspended pending the determination of that case. It was further submitted that the Appellant did not contest the adjudication but instead approached the deceased to sell the parcel to him, demonstrating that he knew the disputed parcel was not his. The Respondent further submitted that the Appellant resided on the parcel next to the deceased's land and was residing on the suit parcel illegally, despite the parcel remaining in the deceased's name since adjudication. It was also contended that the Appellant did not assert any interest through the family, even after the death of Menase Njeru. The Respondent further argued that, as per tradition, ownership of land was characterized by confirming elders, which the Appellant did not do. It was also submitted that the Appellant's claim of occupation did not match the alleged year of occupation. 23. The issue for determination herein is whether the appeal has merit. 24. The Appellants main contention is that the trial court erred in not finding that he had become entitled to the suit land by way of adverse possession and not finding that a constructive trust had been created against the deceased’s title. 25. The law governing adverse possession is well settled. A claimant must demonstrate open, exclusive, continuous and uninterrupted possession of land for a period of not less than twelve years, which possession is adverse to and inconsistent with the title of the registered proprietor. See the case of [Mtana Lewa –vs- Kahindi Ngala Mwagandi](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/keca/2015/532) [2015] eKLRwhere the court defined adverse possession as: *“*Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, twelve (12) years. The process springs into action essentially by default or in action of the owner. The essential prerequisites being that possession of the adverse possessor is neither by force or stealth nor under the license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.” 1. In this case, it is not in dispute that the deceased, Manase Njeru is the registered proprietor of land parcel Evurore/Nguthi/1663. It was the Appellant's own case that he has occupied the suit land since the 1940’s and that in the year 2001 he approached the deceased, with a view to purchasing it. Pursuant thereto, the parties entered into a sale agreement under which the Appellant paid the agreed purchase price. The Appellant testified that he expected the deceased to transfer the land to him but that the transfer was never completed because the deceased died before attending the Land Control Board. In my view, and in agreeing with the trial Court, those facts are wholly inconsistent with a claim founded on adverse possession. This is because, by approaching the deceased to purchase the suit land, the Appellant unequivocally acknowledged the deceased's title. His occupation thereafter was attributable to the sale transaction and his expectation that the land would ultimately be transferred to him, rather than to any intention to dispossess the registered proprietor. In law, such occupation cannot properly be regarded as adverse. 2. I am equally unable to accept the Appellant's submission that his rights for adverse possession had crystallized before the execution of the sale agreement in 2001. Had that been the case, there would have been no reason for him to seek to purchase the land from the deceased or to pursue its transfer to him. His conduct amounted to a clear recognition of the deceased's ownership and is incompatible with an assertion that he had already acquired title by operation of law. I therefore find no basis upon which to interfere with the trial court's finding that the Appellant failed to establish a claim for adverse possession. 3. I however reach a different conclusion with regard to the Appellant's alternative claim founded on constructive trust. The trial court found that there existed a valid sale agreement between the Appellant and the deceased over the suit land and further accepted that the Appellant had substantially performed his obligations thereunder by paying the agreed purchase price some of it to the Respondent. The only outstanding sum of Kshs. 4,340/= was, according to the evidence of both the Appellant and his witness, intended to facilitate the succession proceedings following the death of the deceased and was not part of the purchase price payable for the suit land. Importantly, no evidence was tendered to controvert that explanation. 4. Evidence further shows that following the sale transaction, the Appellant remained in uninterrupted occupation of the suit land, where he continued to reside and undertake his developments with the knowledge of the deceased and his estate to date. In those circumstances, I am satisfied that a constructive trust arose by operation of law in favour of the Appellant. In making my decision I am guided by the case of Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri [2014] eKLR where it was held that: “We take note that the judicial decisions cited by the respondent were all made prior to the promulgation of the 2010 Constitution of Kenya and before the Overriding Objective principles were enacted into the Appellate Jurisdiction Act, Chapter 8, Laws of Kenya. This Court is enjoined to dispense substantive justice. What is justice? Justice is conscience, not a personal conscience but the conscience of the whole humanity, (See Alexander Solhenitsya). Would the conscience of humanity allow an individual to receive purchase price and later plead that the agreement is void? The conscience of humanity dictates that constructive trust and proprietary estoppel shall apply in such cases. Lord Denning in Hussey – vs- Palmer (1972) 3 All ER 744 held that a constructive trust is a trust imposed by law whenever justice and good conscience require it. It is an equitable remedy by which the court can enable an aggrieved party to obtain restitution.” 1. Consequently, I find that the appeal partially succeeds. The finding of the trial court dismissing the Appellant's claim for adverse possession is hereby upheld. However, I set aside the finding dismissing the Appellant's alternative claim founded on constructive trust and substitute it with a declaration that the estate of the late Manase Njeru holds Land Parcel No. Evurore/Nguthi/1663 in constructive trust for the Appellant. 2. Accordingly, the Appellant's counterclaim is allowed in terms of prayers (c), (d) and (e) thereof. The caution registered against Land Parcel No. Evurore/Nguthi/1663 shall remain in force until the transfer of the suit land to the Appellant pursuant to prayer (d) has been completed, whereupon the Land Registrar shall remove the said caution. 3. The Appellant shall have the costs of this appeal and of the lower court. **DATED, DELIVERED AND SIGNED AT EMBU THIS 16TH DAY OF JULY, 2026.** **………………………………** **HON. E.C CHERONO** **ELC JUDG, EMBU** In the presence of; 1. M/S Kamochu H/B Muthoni Ndeke for the Appellant 2. Respondent-absent 3. Ruth C/A