Kagali v Yalaist & another (Environment and Land Appeal E021 of 2024) [2026] KEELC 5364 (KLR) (31 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELC APPEAL NO. E021 OF 2024** **MARY BEATRICE RAGOT KAGALIAPPELLANT** **VERSUS** **PAUL ODHIAMBO YALA1ST RESPONDENT** **IRENE ATIENO2ND RESPONDENT** ***(Being an appeal from the Judgment and Decree of Hon. E. N. Mwenda (PM) dated and delivered on 25th March 2024 in Kisumu CM ELC Case No. 132 of 2018 (formerly Kisumu HC ELC No. 60 of 2015)*** **JUDGMENT** 1. This is a first appeal against the Judgment and Decree of Hon. E. N. Mwenda, Principal Magistrate, dated and delivered on 25th March 2024 in **Kisumu CM ELC Case No. 132 of 2018** (formerly Kisumu HC ELC No. 60 of 2015). By the said judgment, the trial court dismissed the Appellant's suit as against the 2nd Respondent with costs to be paid by the 1st Respondent, and entered judgment in favour of the Appellant as against the 1st Respondent in the sum of Kshs. 614,000/= together with simple interest at 14% per annum from the date of the judgment until payment in full, and costs of the suit. 2. The Appellant was the Plaintiff in the trial court while the Respondents were the 1st and 2nd Defendants respectively. For ease of reference, I shall refer to the parties by their designations in this appeal. 3. Being dissatisfied with the said judgment, the Appellant preferred the instant appeal vide a Memorandum of Appeal dated 24th April 2024 raising seven (7) grounds of appeal, which I shall set out later in this judgment. **Background to the appeal** 4. The dispute revolves around two parcels of land known as **Kisumu/Manyatta 'A'/4335 and Kisumu/Manyatta 'A'/4336** (hereinafter "the suit properties"). The suit properties were initially registered in the names of Elijah Yala Oluoko and Leonida Akinyi Yala, both deceased, who were the parents of the 1st Respondent. Elijah Yala Oluoko died on 5th July 2007 while Leonida Akinyi Yala died on 19th May 2008. 5. By an Amended Plaint dated 2nd October 2020, the Appellant pleaded that she entered into a written sale agreement dated 25th March 2009 with the 1st Respondent for the purchase of the suit properties at an agreed consideration of Kshs. 600,000/=, and paid a deposit of Kshs. 260,000/= upon execution. It was pleaded that since the suit properties were registered in the names of the 1st Respondent's deceased parents, it was a term of the agreement that the Appellant would meet the costs of succession proceedings to facilitate transmission of the suit properties to the 1st Respondent, and that such costs would be computed as part of the balance of the purchase price. Pursuant thereto, the Appellant financed **Kisumu High Court Succession Cause Nos. 551 and 552 of 2008**, in which the 1st Respondent obtained grants of letters of administration intestate on 28th January 2009. 6. The Appellant further pleaded that in the course of following up on the transaction, she discovered that the suit properties had been registered in the name of the 2nd Respondent on 23rd December 2008, which registration she contended was fraudulent since there had been no confirmed grant and the 2nd Respondent was not a beneficiary of the estates of the deceased registered proprietors. At the 1st Respondent's request, and on the understanding that the expenses would likewise be factored into the purchase price, the Appellant financed **Winam SRMCC No. 184 of 2009** in which the 1st Respondent sued the 2nd Respondent and others seeking to impeach the said registration. 7. It was the Appellant's further case that in 2014, when the Winam suit was pending defence hearing, the Respondents compromised the suit through an out-of-court settlement without her knowledge or participation, thereby defeating her interest in the suit properties. She thereafter lodged a criminal complaint culminating in **Winam Criminal Case No. 400 of 2014** in which the 1st Respondent was convicted of the offence of obtaining money by false pretences and sentenced to serve three (3) years' imprisonment. 8. In the Amended Plaint, the Appellant sought the following reliefs: an order directed at the Land Registrar to cancel the title deeds issued to the 2nd Respondent and for the titles to revert to the names of the deceased registered proprietors pending the determination of the succession causes; a declaration that the suit properties are held by the 2nd Respondent in trust for the Appellant; an order compelling the 2nd Respondent to transfer the suit properties to the Appellant; in the alternative, an order compelling the 1st Respondent to refund the Appellant a total of Kshs. 780,000/= comprising the deposit of Kshs. 260,000/= and the particularised expenses incurred in instituting and sustaining the succession causes, the Winam civil suit and the criminal proceedings; together with interest and costs. 9. The particulars of the expenses pleaded at paragraph 9A of the Amended Plaint were: legal fees for the succession causes (Kshs. 60,000/=); legal fees for Winam SRMCC No. 184 of 2009 (Kshs. 110,000/=); upkeep and subsistence of the 1st Respondent and his family for five years (Kshs. 50,000/=); nursery school fees for the 1st Respondent's children (Kshs. 70,000/=); dowry paid on behalf of the 1st Respondent (Kshs. 60,000/=); expenses for tracking the 1st Respondent (Kshs. 70,000/=); legal fees for the criminal case (Kshs. 100,000/=); and the deposit of Kshs. 260,000/=, all totalling Kshs. 780,000/=. 10. The Respondents filed a joint Amended Statement of Defence dated 19th October 2020 denying the claim. The 2nd Respondent's case was that she purchased the suit properties from the 1st Respondent's parents in 2006, while they were still alive, through a handwritten agreement executed before the local chief; that she was taken to the Land Control Board in their company; that she was issued with titles to the suit properties; that she only came to learn of the 1st Respondent when he sued her in the Winam suit; and that she settled that suit by paying an enhanced consideration to the 1st Respondent. 11. At the trial, the Appellant testified as PW1 and produced twenty-eight (28) exhibits, including the sale agreement dated 25th March 2009, the grants of letters of administration, certificates of official search, green cards for the suit properties, receipts for legal fees, and the judgment of the criminal court. Her evidence in material respects reiterated her pleaded case. In cross-examination, she confirmed that the Winam suit was compromised by consent in 2014 and that her then advocate did not move to set aside the consent. She also stated that the expenses relating to the upkeep of the 1st Respondent and his family were not part of the sale agreement. 12. The 2nd Respondent testified as DW1. She produced, among other exhibits, a handwritten sale agreement in Dholuo, the original title deeds in her name, and the consent and sale agreement dated 18th February 2014 by which the Winam suit was settled upon her paying additional consideration to the 1st Respondent. In cross-examination, she confirmed that the handwritten agreement was between herself and Leonida Akinyi Yala only, and that Elijah Yala Oluoko was not a party to it; that both registered proprietors were deceased by the time the title deeds were issued in her name on 23rd December 2008; that no succession proceedings had been undertaken before the transfer; that certificates of official search conducted in February and March 2009 still reflected the deceased as the registered proprietors; and that she had not produced the transfer forms or the Land Control Board minutes she referred to. The 1st Respondent did not testify, his counsel having closed the defence case on 30th October 2023 upon indicating that he could not be traced. **The judgment of the trial court** 13. In the impugned judgment, the learned trial magistrate framed the dispute as turning on a narrow question of law, namely whether the Appellant, having obtained a regular criminal judgment against the 1st Respondent for the offence of obtaining by false pretences, could thereafter sustain a civil action for specific performance based on the contract already adjudged by the criminal court to be in pursuit of a fraudulent scheme. The court answered the question in the negative, observing that it was anachronistic for the Appellant to plead on the one hand that the 1st Respondent defrauded her and in the same breath seek to enforce the contract for the sale of the suit properties. 14. The learned trial magistrate nonetheless rejected the Respondents' submission that the sale agreement was an illegal contract. The court found that the 1st Respondent held grants of letters of administration when the agreement was executed and that there is no absolute bar against an administrator entering into a contract concerning estate property, although by dint of **section 82(b)(ii) of the Law of Succession Act (Cap. 160)**, such a contract would only be enforceable upon issuance of a confirmed grant. The court however held that the criminal conviction established, as a fact of which it took judicial notice, that when the 1st Respondent contracted with the Appellant he had no intention of transferring any interest in the suit properties, such that there was no consensus ad idem and consequently no enforceable contract capable of specific performance. 15. On the claim against the 2nd Respondent, the trial court held that the Appellant had failed to prove the pleaded particulars of fraud to the required standard, being a standard above a balance of probabilities though below beyond reasonable doubt, and declined to revoke the 2nd Respondent's titles. On the claim founded on trust, the court, guided by **Twalib Hatayan Twalib Hatayan & Another v Said Saggar Ahmed Al-Heidy & Others [2015] eKLR**, held that the intentions of the parties were ascertainable, that there was no proof that the 2nd Respondent had unjustly enriched herself since her evidence, prima facie, was that she paid consideration for the suit properties, and that no constructive or resulting trust arose. 16. On the monetary claims, the trial court allowed a refund of the deposit of Kshs. 260,000/=, this being the sum which the criminal court had found was fraudulently obtained, together with interest at court rates computed at Kshs. 254,000/=. The court also allowed Kshs. 100,000/= being legal fees paid to counsel who held a watching brief in the criminal proceedings, reasoning that this was a corollary damage flowing from the 1st Respondent's fraudulent acts. The court however declined the claims for legal fees for the succession causes (Kshs. 60,000/=) and the Winam civil suit (Kshs. 110,000/=) on the ground that these were never contemplated in the impugned fraudulent contract, and declined the claims relating to the upkeep, rent, school fees and dowry on the ground that the Appellant had admitted in cross-examination that they did not form part of the contract and there was no demonstration that the parties intended those arrangements to be legally binding. 17. The trial court accordingly dismissed the suit against the 2nd Respondent with costs to be paid by the 1st Respondent, and entered judgment for the Appellant against the 1st Respondent in the sum of Kshs. 614,000/= with simple interest at 14% per annum from the date of judgment until payment in full, together with costs of the suit. **The Appeal** 18. Aggrieved by the said judgment, the Appellant lodged the Memorandum of Appeal dated 24th April 2024 faulting the learned trial magistrate on seven grounds which may be summarised as follows: that the learned trial magistrate erred in reducing the entire suit to the single narrow question of the effect of the criminal conviction (Ground 1); in holding that the Appellant could not plead fraud and simultaneously seek to enforce the contract, in disregard of the evidence of the parties' original intention (Ground 2); in finding that there was no consensus ad idem without appreciating the weight of the evidence of an established intention to transfer the suit properties (Ground 3); in holding that the Appellant failed to prove fraud against the 2nd Respondent (Ground 4); in finding that no trust could be implied in the circumstances (Ground 5); in failing to award the legal fees for the succession causes and Winam SRMCC No. 184 of 2009 and the costs of sustaining the 1st Respondent's upkeep and his children's school fees (Ground 6); and in finding that the Appellant had failed to prove her case on a balance of probabilities (Ground 7). 19. The Appellant prayed that the appeal be allowed, that the whole judgment and decree of 25th March 2024 be set aside and be substituted with an order allowing the suit as prayed in the Amended Plaint, and that she be awarded the costs of the appeal. **Submissions by the parties** 20. The appeal was canvassed by way of written submissions. The Appellant filed written submissions through her counsel condensing the seven grounds of appeal into four issues: first, whether the learned trial magistrate erred in holding that the Appellant's successful prosecution of the 1st Respondent extinguished her civil and equitable remedies arising from the transaction; secondly, whether the learned trial magistrate erred in holding that the Appellant failed to prove fraud against the 2nd Respondent; thirdly, whether the learned trial magistrate erred in failing to find that the Respondents held the suit properties subject to a constructive trust in favour of the Appellant; and fourthly, whether the learned trial magistrate erred in declining to award the monies expended towards the succession proceedings, litigation expenses, upkeep and other special damages. 21. On the first issue, counsel submitted that the criminal proceedings established only that the 1st Respondent criminally obtained money from the Appellant by false pretences, and did not determine her proprietary and equitable rights, which were distinct civil questions requiring independent determination. Reliance was placed on **section 193A of the Criminal Procedure Code** and **section 47A of the Evidence Act**, it being submitted that a final criminal conviction is conclusive evidence that the convicted person committed the offence but does not extinguish every civil consequence flowing from the transaction. Counsel cited **Robinson v Oluoch [1971] EA 376** for the proposition that a conviction does not relieve the civil court of its duty to determine the remaining issues in controversy. 22. On the second issue, counsel submitted that fraud was specifically pleaded and that the trial court failed to evaluate the chain of events holistically, including the registration of the suit properties in the 2nd Respondent's name after the death of the registered proprietors, the institution of the Winam suit to impeach that registration, and the subsequent compromise between the Respondents. Reliance was placed on **Kinyanjui Kamau v George Kamau [2015] eKLR** on the standard of proof of fraud, and on **section 26(1) of the Land Registration Act**, **Arthi Highway Developers Limited v West End Butchery Limited & 6 Others [2015] eKLR** and **Funzi Island Development Limited & 2 Others v County Council of Kwale & 2 Others [2014] eKLR** on the impeachability of a title procured through fraud or illegality. 23. On the third issue, counsel submitted that the Appellant's case was never confined to enforcement of the sale agreement, and that her substantial financial contributions towards the acquisition, preservation and recovery of the suit properties, made at the request and with the encouragement of the 1st Respondent, gave rise to a constructive trust. Counsel placed reliance on **Willy Kimutai Kitilit v Michael Kibet [2018] eKLR**, **Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri [2014] eKLR**, **Isaya Shem Aluoch v George Elly Owino & Another [2018] eKLR** and **Hussey v Palmer [1972] 3 All ER 744**. 24. On the fourth issue, counsel submitted that the claim for reimbursement was an independent cause of action founded on restitution and the prevention of unjust enrichment, which required separate consideration irrespective of the fate of the contractual claim. Counsel cited **Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32** and the decision in **Benedict Muriithi Kagia v Cabinet Secretary for the Ministry of Interior & Coordination of National Government & 2 Others [2024] eKLR** on the object of restitutionary remedies. It was submitted that the Respondents could not be permitted to retain both the suit properties and the benefit of the Appellant's expenditure. 25. The 2nd Respondent opposed the appeal and filed written submissions dated 3rd August 2026 through the firm of Lugano & Achura Advocates. 26. Counsel began by acknowledging the duty of this court, as a first appellate court, to analyse, evaluate and reconsider the evidence afresh and arrive at its own independent conclusion, but urged that the duty be exercised with circumspection. Relying on the passage cited as **Peter v Sunday Limited (1968) EA 123**, counsel submitted that it is a strong thing for an appellate court to differ from the findings on questions of fact made by the trial court which had the advantage of seeing and hearing the witnesses, and that it is not enough that the appellate court might itself have come to a different conclusion. It was submitted that the judgment of the trial court was sound, well founded in law, and ought not to be disturbed. 27. On the merits, counsel submitted that both the Appellant's suit and this appeal were misconceived because her arrangement with the 1st Respondent was an illegal contract ab initio and therefore unenforceable. It was further submitted that once the 1st Respondent had been convicted of obtaining money from the Appellant by false pretences, the contract was void, and that specific performance cannot be decreed in respect of a void contract. 28. On the claim founded on trust, counsel submitted that a constructive trust is an equitable remedy imposed by the court to prevent unjust enrichment where it would be unconscionable for the legal owner to deny another person's beneficial interest in property; that it does not arise merely because one party asserts an expectation or alleges an oral agreement; and that the burden lies on the party asserting the trust to prove the facts giving rise to it. It was submitted that the Appellant demonstrated no conduct, contribution, common intention or circumstances capable of giving rise to a constructive trust; that there was no evidence that the 2nd Respondent intended to hold the suit properties for the benefit of the Appellant; and that there was no evidence that the Appellant made any direct financial contribution to the 2nd Respondent towards the acquisition or development of the suit properties in reliance upon any such intention. 29. Counsel further submitted that the 2nd Respondent is the registered proprietor of the suit properties; that under the Land Registration Act the rights of a registered proprietor are protected unless impeached on legally recognised grounds; that registration confers ownership together with all the rights and privileges appurtenant thereto; and that equity cannot be invoked to defeat statutory rights in the absence of cogent evidence establishing an equitable interest. It was added that a constructive trust cannot be used as a device to circumvent the statutory requirements governing dispositions of interests in land, and that where an alleged agreement for the sale or transfer of land fails to comply with the mandatory legal requirements, equity will not intervene to create proprietary rights save in exceptional circumstances. 30. Finally, counsel submitted that no unconscionable conduct was established on the part of the 2nd Respondent, the Appellant having never been in possession or occupation of the suit properties and never having entered into any sale agreement or negotiation with the 2nd Respondent concerning them. It was submitted that the Appellant, having enjoined the 2nd Respondent to the proceedings, bore the obligation of adducing evidence to prove whatever claim she had against her, and that all she did was to allege without proof. Counsel accordingly urged that the appeal be dismissed with costs. 31. The 1st Respondent did not file any written submissions in response to the appeal, despite having been served with the Record of Appeal and accorded the opportunity to do so, just as he did not testify at the trial. Despite that omission, his silence is not to be taken as a concession or an admission of the appeal, nor does it relieve this court of its duty as a first appellate court to subject the record to fresh and independent scrutiny. The burden remains on the Appellant to demonstrate that the judgment appealed from is erroneous in fact or in law. I have therefore determined the appeal as against the 1st Respondent on its merits, upon a consideration of the entire record, and not upon the footing that it stands unopposed. **Analysis and determination** 32. I have carefully considered the entire Record of Appeal, the Memorandum of Appeal, the impugned judgment, the proceedings and evidence tendered before the trial court, the submissions filed and the authorities cited. This being a first appeal, this court is under a duty to re-evaluate, re-assess and re-analyse the evidence on record and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify and giving due allowance in that respect. 33. I accept the caution urged upon me by counsel for the 2nd Respondent, which is correctly founded upon the second of those authorities. I would only observe, in passing and without any disrespect to counsel, that the passage relied upon is drawn from **Peters v Sunday Post Limited [1958] EA 424**, while the citation given, [1968] EA 123, belongs to **Selle & Another v Associated Motor Boat Co. Ltd & Others**. Nothing turns on the slip, since the principle for which counsel contends is accurately stated and I adopt it. It is indeed a strong thing for an appellate court to differ from a finding of primary fact made by a trial court which saw and heard the witnesses, and mere disagreement is not a licence to interfere. That restraint, however, operates with its full force upon findings which turn on the demeanour and credibility of witnesses. It applies with considerably less force to inferences drawn from documents and from admissions made in cross-examination, and it has no application at all to conclusions of law, in respect of which this court is in as good a position as the trial court. It is largely in the latter two spheres that this appeal falls to be determined. 34. Having considered the grounds of appeal and the rival positions of the parties, the following issues commend themselves for determination in this appeal: **(i) Whether the learned trial magistrate erred in holding that there was no enforceable contract capable of specific performance in view of the 1st Respondent's criminal conviction.** **(ii) Whether the learned trial magistrate erred in finding that fraud was not proved against the 2nd Respondent and in declining to cancel her titles.** **(iii) Whether the learned trial magistrate erred in finding that no trust arose over the suit properties in favour of the Appellant.** **(iv) Whether the learned trial magistrate erred in declining to award the balance of the particularised expenses claimed by the Appellant.** **(v) What orders should issue as to costs.** ***Whether there was an enforceable contract capable of specific performance.*** 35. The starting point is **section 47A of the Evidence Act (Cap. 80)** which provides that a final judgment of a competent court in any criminal proceedings which declares any person to be guilty of a criminal offence shall, after the expiry of the time limited for an appeal against such judgment or after the date of the decision of any appeal therein, whichever is the latest, be taken as conclusive evidence that the person so convicted was guilty of that offence. It is not in dispute that the 1st Respondent was convicted in Winam Criminal Case No. 400 of 2014 of the offence of obtaining money by false pretences arising from the very transaction the subject of the suit, that he served his sentence, and that the conviction was never appealed. The judgment of the criminal court was produced at trial as P. Exhibit 28. 36. The elements of the offence of obtaining by false pretences under **section 313 of the Penal Code** include a false representation of an existing or past fact, made knowingly and with intent to defraud, by which the accused obtains from the complainant something capable of being stolen. The conviction therefore conclusively established that at the time the 1st Respondent received the Appellant's deposit of Kshs. 260,000/=, he made a false representation with intent to defraud and had no intention of passing any interest in the suit properties to the Appellant. 37. The learned trial magistrate reasoned that in those circumstances there was no consensus ad idem and hence no enforceable contract capable of founding a decree of specific performance. I find no fault with that conclusion, though I would express the principle with a slight refinement. A contract induced by fraudulent misrepresentation is not void ab initio but voidable at the instance of the innocent party, who upon discovery of the fraud has an election: to affirm the contract and seek its enforcement, or to rescind it and seek restitution of what passed under it together with damages flowing from the deceit. What the innocent party cannot do is pursue both courses at once. The Appellant, by lodging the criminal complaint and prosecuting it to conviction on the footing that her money was obtained from her by false pretences, and by pleading in the Amended Plaint that the 1st Respondent defrauded her, unequivocally treated the transaction as a fraudulent scheme rather than a subsisting bargain. Having done so, she could not in the same breath call upon the court to decree specific performance of the very bargain she had repudiated as fraudulent. A party cannot approbate and reprobate. 38. Counsel for the 2nd Respondent travelled a somewhat different route to the same destination, submitting that the agreement of 25th March 2009 was an illegal contract ab initio, and void, so that no decree of specific performance could issue upon it. Two observations are called for. The first is that the plea of illegality was expressly considered and rejected by the trial court, which held that the 1st Respondent held grants of letters of administration when the agreement was executed, that there is no absolute bar to an administrator contracting in respect of estate property, and that such a contract is enforceable upon confirmation of the grant by dint of **section 82(b)(ii) of the Law of Succession Act**. That was a finding adverse to the Respondents. Neither Respondent preferred a cross-appeal against it, and no notice of grounds for affirming the decision on other grounds was filed. It is not open to a respondent, in the absence of a cross-appeal, to invite the appellate court to reverse a finding made against him in the court below, and I say no more about the contention than that it is not properly before me. 39. The second observation is that, even if the contention were open, it would not improve the 2nd Respondent's position. Whether the agreement is characterised as void for want of consensus ad idem, voidable for fraudulent misrepresentation, or unenforceable for want of a confirmed grant, the consequence for the relief of specific performance is precisely the same, and that relief is in any event unavailable for the reasons I have given and for the further reason set out in the next paragraph. Indeed, pressed to its logical conclusion, the submission would tell against the wider position counsel advanced rather than for it. Money paid under a contract which is void, or obtained by fraud, is recoverable in restitution; and the maxim in pari delicto potior est conditio defendentis has no application here, for the Appellant was the victim of the fraud, not a participant in it. An illegal contract, on counsel's own premise, would therefore leave the Appellant's restitutionary claim standing, which is the claim upon which she ultimately succeeds in part. 40. There is a further and equally insuperable obstacle to specific performance. Specific performance presupposes that the party against whom the decree is sought is in a position to perform. The suit properties are registered in the name of the 2nd Respondent, and the 1st Respondent holds no title capable of being conveyed. A decree of specific performance against the 1st Respondent would therefore have been in vain, while no contractual privity existed between the Appellant and the 2nd Respondent capable of supporting such a decree against her. 41. That said, I agree with counsel for the Appellant on one important point of principle: the criminal conviction did not, and could not, extinguish the Appellant's civil remedies arising from the transaction. Criminal and civil liability are distinct; they serve different ends, are governed by different standards of proof, and yield different remedies. Section 47A of the Evidence Act renders the conviction conclusive of the commission of the offence; it does not oust the jurisdiction of the civil court to determine the consequences of that established fraud as between the parties. Indeed, far from treating the conviction as extinguishing the Appellant's remedies, the trial court itself granted restitutionary relief: it ordered a refund of the deposit with interest and awarded the legal fees incurred in the criminal proceedings as a corollary of the fraud. The true complaint, properly understood, is therefore not that the trial court held the conviction to have extinguished all civil remedies, but that the restitutionary award it made was incomplete. That is the subject of issue (vi) below. 42. Subject to what I say under issue (vi), Grounds 1, 2, 3 and 7 of the appeal fail to the extent that they impugn the trial court's refusal to decree specific performance or to enforce the sale agreement. ***Whether fraud was proved against the 2nd Respondent*** 43. The law on proof of fraud is well settled. Allegations of fraud must be specifically pleaded and strictly proved, the standard of proof being higher than a balance of probabilities though not so high as beyond reasonable doubt. This was restated by the Court of Appeal in **Kinyanjui Kamau v George Kamau [2015] eKLR**. Equally settled, by dint of **section 26(1) of the Land Registration Act, 2012**, is that a certificate of title is prima facie evidence of proprietorship but may be impeached where it is shown to have been procured by fraud or misrepresentation to which the person is proved to be a party, or where it was acquired illegally, unprocedurally or through a corrupt scheme: see **Arthi Highway Developers Limited v West End Butchery Limited & 6 Others [2015] eKLR**. 44. Counsel for the 2nd Respondent submitted that registration confers ownership together with all rights and privileges appurtenant thereto, and that equity cannot be invoked to defeat statutory rights. I accept that submission, but only in its qualified form. **Sections 24 and 25 of the Land Registration Act** do vest in the registered proprietor the absolute ownership of the land together with all rights and privileges belonging or appurtenant thereto. But section 25(2) makes those rights subject to the obligation of the proprietor to give effect to such trusts and overriding interests as may affect the land, and section 26(1) preserves the grounds upon which a title may be impeached. A certificate of title is therefore conclusive; it is not impregnable. Indefeasibility protects the registered proprietor from inquisition into how he came by the land; it does not clothe with validity a title procured by fraud, illegality or unprocedural conduct, nor does it defeat a trust which the proprietor's own conscience has attracted. The question in every case remains whether the party impeaching the register has established one of the recognised grounds. It is to that question that I now turn. 45. Upon my own re-evaluation of the evidence, I must candidly observe that the circumstances surrounding the registration of the suit properties in the name of the 2nd Respondent on 23rd December 2008 raise serious questions. On the 2nd Respondent's own admissions in cross-examination: the handwritten agreement she relied upon was executed by Leonida Akinyi Yala alone, yet parcel No. 4336 was registered in the name of Elijah Yala Oluoko and parcel No. 4335 in the joint names of both deceased; both registered proprietors were dead by 23rd December 2008 when the titles issued in her name; no succession proceedings had been undertaken in respect of either estate at that time; certificates of official search conducted as late as February and March 2009 continued to reflect the deceased as the registered proprietors; and the transfer instruments and Land Control Board minutes she referred to were never produced. A transfer of land registered in the names of deceased proprietors, effected without a grant of representation, is inconsistent with **sections 45 and 79 of the Law of Succession Act**, which prohibit intermeddling with the free property of a deceased person and vest such property in the personal representative upon a grant. 46. Nevertheless, irregularity in the registration process is not, without more, proof of fraud on the part of the transferee. Fraud connotes actual dishonesty and must be brought home to the party against whom it is alleged. Counsel for the 2nd Respondent is correct in submitting that the Appellant, having enjoined the 2nd Respondent, bore the burden of proving her case against her. The 2nd Respondent's evidence, which the trial court accepted, was that she purchased the suit properties in 2006 while the registered proprietors were alive, before the local chief, that she was taken to the Land Control Board in their company, and that she paid consideration. No evidence was led connecting her to the mechanics of the December 2008 registration, or establishing collusion between her and officials of the land registry as pleaded in the particulars of fraud. The evidential gap which confronted the trial court confronts this court equally on re-evaluation. 47. More fundamentally, there are two considerations which, in my view, place the relief of cancellation beyond the Appellant's reach regardless of the strength of her suspicions. First, the relief sought, namely cancellation of the 2nd Respondent's titles and reversion of the suit properties to the names of the deceased pending the determination of the succession causes, is in substance relief for the benefit of the estates of the deceased. The Appellant is neither the personal representative nor a beneficiary of either estate. Her interest in the suit properties was at all times derivative of the sale agreement with the 1st Respondent, and once that agreement was repudiated for fraud, she retained no proprietary interest capable of supporting a claim to impeach the register on behalf of the estates. Any grievance concerning the regularity of the December 2008 registration was one for the personal representative of the deceased, or for the succession court, to pursue. 48. Secondly, the personal representative and sole beneficiary of the two estates, being the 1st Respondent, elected to affirm the 2nd Respondent's title. He instituted Winam SRMCC No. 184 of 2009 to challenge the registration, but thereafter compromised that suit by a consent recorded in 2014 and executed a fresh sale agreement dated 18th February 2014 under which he accepted enhanced consideration from the 2nd Respondent. Whatever irregularities may have attended the original registration, the person clothed in law with the capacity to impeach it chose instead to ratify the transaction. There was, further, no evidence before the trial court that the succession causes remained pending and unconcluded so as to sustain the prayer for reversion of the titles pending their determination. The trial court so found, and I find no basis to disturb that finding. 49. For those reasons, while my route differs in part from that of the learned trial magistrate, I reach the same destination: the prayer for cancellation of the 2nd Respondent's titles was properly declined. Ground 4 of the appeal fails. ***Whether a trust arose in favour of the Appellant*** 50. The trial court directed itself by reference to **Twalib Hatayan Twalib Hatayan & Another v Said Saggar Ahmed Al-Heidy & Others [2015] eKLR**, in which the Court of Appeal defined a trust and explained that a constructive trust is an equitable remedy imposed against one who has acquired property by wrongdoing, in order to guard against unjust enrichment, while a resulting trust arises in favour of the person who advances the purchase money where the circumstances suggest that no beneficial interest was intended to pass to the transferee. 51. Counsel for the Appellant placed considerable reliance on **Willy Kimutai Kitilit v Michael Kibet [2018] eKLR**, where the Court of Appeal held that the doctrines of constructive trust and proprietary estoppel apply to land transactions notwithstanding the formalities prescribed by section 3(3) of the Law of Contract Act, and that equity will intervene where a party has acted to his detriment on the faith of a common intention or assurance such that it would be unconscionable for the legal owner to deny that party's beneficial interest. Similar reliance was placed on **Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri [2014] eKLR** and **Hussey v Palmer [1972] 3 All ER 744**. 52. Counsel for the 2nd Respondent, for her part, submitted that a constructive trust cannot be used as a device to circumvent the statutory requirements governing dispositions of interests in land, and that where the alleged agreement fails to comply with the mandatory legal requirements equity will not intervene to create proprietary rights. As a general proposition that submission is stated too widely, and I am unable to accept it in those terms. It is precisely the office of a constructive trust, and of proprietary estoppel, to intervene where insistence upon strict legal form would work an injustice, and **Willy Kimutai Kitilit (supra)** settles that these doctrines are not excluded by non-compliance with section 3(3) of the Law of Contract Act. What is sound in the submission, and what I understand counsel to have been reaching for, is that equity does not intervene at large. The claimant must still establish a common intention or assurance, detrimental reliance upon it, and unconscionability on the part of the person sought to be bound. Where those ingredients are absent, the claim fails on its own terms and the question of statutory formalities never arises. That, as it happens, is this case. 53. The principles relied upon by the Appellant are not in doubt. Their application to the facts of this case, however, faces an immovable difficulty: the identity of the legal owner. A constructive trust binds the conscience of the holder of the legal title. The legal title to the suit properties is vested in the 2nd Respondent. Yet every assurance, request and encouragement upon which the Appellant acted to her detriment emanated from the 1st Respondent, and every shilling she expended was received by, or expended for the benefit of, the 1st Respondent. The 2nd Respondent was a stranger to the sale agreement of 25th March 2009; she made no representation to the Appellant; she received none of the Appellant's money; and on the evidence she furnished her own consideration for the suit properties on two occasions, first under the 2006 transaction and again under the 2014 settlement. The authorities relied upon by the Appellant all concerned the enforcement of an equity against the very party who had given the assurances or received the purchase money. None of them supports the imposition of a trust upon a third-party registered proprietor who neither made nor adopted the assurances and was not enriched by the claimant's expenditure. It cannot be said to be unconscionable, in the sense the authorities contemplate, for the 2nd Respondent to deny the Appellant a beneficial interest she never induced her to expect. To that extent, the submissions of counsel for the 2nd Respondent that no conduct, contribution or common intention was demonstrated as against her, and that no part of the Appellant's expenditure enured to her benefit, are well founded and I accept them. 54. As against the 1st Respondent, a trust over the suit properties is equally untenable for the simple reason that he holds no legal title to which a trust could attach. Equity acts in personam, and where the party whose conscience is affected has parted with the property, the claimant's remedy lies not in a proprietary declaration but in personal restitutionary relief. Nor could a resulting trust avail the Appellant: as the trial court correctly observed, she paid only part of the purchase price, she never took possession, and the presumption of a resulting trust in favour of the provider of purchase money cannot operate against a registered proprietor who did not receive that money. The trial court's conclusion that no trust arose was therefore sound. Ground 5 of the appeal fails. ***Whether the trial court erred in declining the balance of the particularised expenses*** 55. It is on this issue that the appeal has merit, in part. I observe at the outset that this issue lies between the Appellant and the 1st Respondent alone. The 2nd Respondent has no interest in the monetary claim and, understandably, made no submissions upon it. The 1st Respondent, against whom alone the claim lies, filed no submissions at all. I have for that reason approached the question with the care which his absence demands, testing the Appellant's claim against the record rather than accepting it merely because it stands unanswered. 56. The trial court awarded the Appellant the deposit of Kshs. 260,000/= with interest, together with Kshs. 100,000/= being the legal fees for counsel who held a watching brief in the criminal case, which the court characterised as a corollary damage to the 1st Respondent's fraudulent acts. It however declined the legal fees for the succession causes (Kshs. 60,000/=) and for Winam SRMCC No. 184 of 2009 (Kshs. 110,000/=) for the reason that these were never contemplated in the impugned fraudulent contract. 57. With respect, that reasoning cannot withstand scrutiny, for it applies the wrong measure. Once the trial court found, as it did, that the entire transaction was a fraudulent scheme conclusively established by the criminal conviction, the Appellant's entitlement fell to be assessed not on the contract, which she had rescinded, but on restitutionary principles: the recovery of that which she parted with under the inducement of the fraud, and the losses flowing directly from it. That is precisely the basis on which the trial court itself awarded the watching brief fees, which, notably, were even further removed from the contract than the succession and litigation expenses. The court could not consistently award the watching brief fees as a corollary of the fraud while declining the succession and litigation fees on the ground that the contract did not contemplate them. The deposit itself was not refunded because the contract provided for a refund; it was refunded because it was obtained by fraud. The same logic governs the other expenditures induced by the same fraud. 58. The evidence on these two items was clear and uncontroverted. The Appellant pleaded at paragraphs 5A, 7 and 9A of the Amended Plaint that it was agreed that she would meet the costs of the succession proceedings and, later, of the Winam suit, and that those costs would be computed as part of the balance of the purchase price. She testified that she funded the succession causes through counsel and that she funded the filing and prosecution of Winam SRMCC No. 184 of 2009, and she produced receipts from the advocates concerned as P. Exhibits 13, 22 and 26. The 1st Respondent never entered the witness box to controvert that evidence. The benefit to the 1st Respondent was direct and demonstrable: through the succession causes he obtained grants of representation to his parents' estates on 28th January 2009, and through the Winam suit, which the Appellant financed, he extracted from the 2nd Respondent the enhanced consideration paid under the settlement of 2014, whereafter he abandoned the Appellant altogether. To permit him to retain those benefits while the Appellant bears the expense of conferring them would be to allow him to profit twice from his own fraud. Both items were specifically pleaded, quantified and strictly proved as special damages, and ought to have been awarded. 59. The position is different with respect to the remaining items. As regards the expenses of upkeep and subsistence of the 1st Respondent and his family (Kshs. 50,000/=), the school fees (Kshs. 70,000/=) and the dowry (Kshs. 60,000/=), the Appellant conceded in cross-examination that these did not form part of the sale agreement. They were, on her own evidence, benevolent arrangements made in a domestic and social setting during the pendency of the litigation. The trial court was entitled to find that there was no demonstration that the parties intended those arrangements to be legally binding, and I would add that they are also too remote from the fraudulent inducement to sound in damages for deceit. As regards the expenses of tracking the 1st Respondent (Kshs. 70,000/=), this was a claim in special damages supported by no documentary proof; the settled principle that special damages must be specifically pleaded and strictly proved was not satisfied. Those items were properly declined. 60. The result is that the Appellant was entitled, in addition to the sums awarded by the trial court, to Kshs. 60,000/= being the legal fees for Kisumu High Court Succession Cause Nos. 551 and 552 of 2008 and Kshs. 110,000/= being the legal fees for Winam SRMCC No. 184 of 2009, making an additional sum of Kshs. 170,000/= as against the 1st Respondent. The judgment sum of Kshs. 614,000/= is accordingly enhanced to Kshs. 784,000/=. In fairness and consistency with the structure of the decree of the trial court, the additional sum of Kshs. 170,000/= shall attract simple interest at the same rate of 14% per annum from the date of the judgment of the trial court, being 25th March 2024, until payment in full. Ground 6 of the appeal succeeds to that extent only. ***Costs*** 61. Costs are in the discretion of the court under **section 27 of the Civil Procedure Act** and ordinarily follow the event. The event in this appeal is not uniform, and the position of each Respondent must be considered separately. 62. As between the Appellant and the 2nd Respondent, the position is straightforward. The appeal as against the 2nd Respondent has failed in its entirety and I accordingly order that the Appellant shall bear the 2nd Respondent's costs of this appeal. 63. I have considered whether to replicate the structure adopted by the trial court, which directed that the 2nd Respondent's costs of the suit be borne by the 1st Respondent on the footing that it was his fraud which drew her into the litigation. That reasoning does not, in my view, carry over into the appeal. The 1st Respondent did not appeal. It was the Appellant who, having failed against the 2nd Respondent at trial, elected to pursue the claim against her a second time in this court, and it is that election, rather than the 1st Respondent's fraud, which occasioned the costs now in question. 64. As between the Appellant and the 1st Respondent, the outcome is genuinely mixed. The just order is that each of them shall bear their own costs of the appeal. The costs orders made by the trial court remain undisturbed. **Final orders** 65. In the end, the appeal partially succeeds. Accordingly, I make the following final orders: **i. The appeal is hereby allowed only to the extent that the judgment sum of Kshs. 614,000/= awarded to the Appellant as against the 1st Respondent is enhanced by Kshs. 170,000/= (comprising Kshs. 60,000/= being legal fees for Kisumu High Court Succession Cause Nos. 551 and 552 of 2008, and Kshs. 110,000/= being legal fees for Winam SRMCC No. 184 of 2009) to Kshs. 784,000/=.** **ii. The additional sum of Kshs. 170,000/= shall attract simple interest at the rate of 14% per annum from 25th March 2024 until payment in full. For the avoidance of doubt, the interest awarded by the trial court on the sum of Kshs. 614,000/= remains as decreed.** **iii. Save as varied in orders (i) and (ii) above, the appeal is dismissed and the Judgment and Decree of Hon. E. N. Mwenda (PM) dated 25th March 2024 in Kisumu CM ELC Case No. 132 of 2018, including the dismissal of the suit as against the 2nd Respondent and the costs orders made therein, is affirmed.** **iv. The Appellant shall bear the 2nd Respondent's costs of this appeal.** **v. As between the Appellant and the 1st Respondent, each party shall bear their own costs of this appeal.** **DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU THIS 31ST DAY OF AUGUST 2026.** **E. K. WABWOTO** **JUDGE** **In the presence of:** **Ms. Angwenyi for the Appellant.** **Mr. Achura for the 1st Respondent.** **N/A for the 2nd Respondent.** **Court Assistant: Joanne Omondi.**