https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5054

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELC LAND APPEAL CASE NO. E001 OF 2025** **JANE NKUENE KARIMI.............................................APPELLANT** **=VERSUS=** **RONALD MUTUMA MUTAI (*Personal/Legal*** ***Representative of the late KANYUA MUTAI*).........RESPONDENT** ***[An Appeal against the Judgment of the Senior Resident Magistrate Court at Nkubu [Hon R Ongira - SRM] dated 28/11/2024 in Nkubu SPM E & L Case No 40 of 2020]*** **JUDGMENT** **Introduction** 1. This appeal challenges the Judgment of the Senior Resident Magistrate Court at Nkubu [Hon R Ongira – SRM] rendered on 28/11/2024. The appellant alleged in the said suit that the estate of the late **Stephen Mutai M’Imanyara** [*hereinafter referred to as* ***“the deceased”*** *or* ***“the late M’Imanyara”***] was a trespasser on land parcel number **Igoji/Kinoro/845** because the land sale agreement through which she had sold to the deceased a 0.75 acre portion of the land had become void for lack of consent of the Land Control Board. On its part, the estate contended that the deceased and the estate had become lawfully entitled to the 0.75 acre portion under the doctrine of constructive trust and asserted that the estate was lawfully in occupation of the 0.75 acre portion. 2. Some of the key issues that fell for determination in the suit were: (i) Whether the estate of the late M’Imanyara was entitled to the 0.75 acre portion of the suit land under the doctrine of constructive trust; and (ii) Whether the appellant was entitled to a repossession of the 0.75 acre portion that she had sold to the late M’ Imanyara in 2014. Invariably, these are some of the key issues that fall for determination in this first appeal. Before I analyse and dispose the issues, I will briefly outline the background to the appeal; the grounds of appeal; and the parties’ respective submissions in the appeal. **Background** 1. Vide a plaint dated 17/3/2020, the appellant sued the widow of the late M’Imanyara [***the late Mrs Kanyua Mutai***], praying for a permanent injunction restraining her and her agents, servants and employees against entering or interfering with the appellant’s use and occupation of land parcel number **Igoji/Kinoro/845** (*the suit land*). She alleged during trial that she sold to the late M’Imanyara a 0.75 acre portion of the suit land through an agreement dated 2014 and contended that the said agreement became void due to lack of consent of the Land Control Board. She admitted receipt of the agreed purchase in full and contended that the deceased forcefully took possession of the 0.75 acres. She stated that she sued the widow of the deceased because she was the administratrix of the deceased’s estate. 2. The widow filed a defence and counterclaim dated 1/9/2020. The defence and counterclaim were amended on 31/5/2024. She averred that she was the personal representative (administratrix) of the estate of the late M’Imanyara. She stated that the appellant sold to the deceased a 0.75 acre portion of the suit land vide an agreement dated 31/12/2014 and the deceased paid the appellant the full purchase price, adding that pursuant to the sale agreement, the appellant put the deceased in possession of the 0.75 acre portion whereafter the deceased planted tea on the said portion. She added that the deceased and his estate had remained in possession since then. 3. The widow faulted the appellant for refusing to transfer the sold portion and asserted that the deceased and his estate had become entitled to the 0.75 acre portion under the doctrine of adverse possession. 4. Making a counterclaim on behalf the estate of the deceased, she prayed for an order of specific performance by dint of the doctrine of constructive trust, and an order compelling the appellant to transfer the 0.75 acre portion to the estate. She died during the pendency of the suit and she was substituted by **Ronald Mutuma Mutai** pursuant to a limited grant dated 20/12/2023 relating to the estate of the late M’Imanyara. 5. During trial, the appellant testified as **PW1** and closed her case. The respondent testified as DW1 and closed his case. Upon receiving submissions, the trial court rendered the impugned Judgment in which it found that a constructive trust had crystalized in favour of the deceased in relation to the 0.75 acre portion which the appellant sold to the deceased. The trial court dismissed the appellant’s claim and allowed the counterclaim by the respondent. **Appeal** 1. Aggrieved by the Judgment and decree of the trial court, the appellant brought this appeal, advancing the following verbatim grounds: 2. ***The Learned Magistrate erred in law in dismissing the appellant’s case when she had proved her case on a balance of probability required by the law.*** 3. ***The Learned Senior Resident Magistrate erred in law in allowing the defendant’s counterclaim based on the so called constructive trust which went against the Land Control Act.*** 4. ***The Learned Senior Resident Magistrate erred in law in her interpretation of the Land Control Act viz a viz the doctrine of constructive trust hence arrived at a wrong conclusion.*** 5. ***The Learned Senior Resident Magistrate erred in law in failing to find that lack of Land Control Board Consent rendered the agreement voidable and that the only recourse available to the respondent was a refund of the purchase price and that since it was not prayed for, the only thing the court could do was to dismiss the respondent’s counterclaim and allow the prayers sought by the appellant.*** 6. ***The Learned Senior Resident Magistrate erred in her analysis of the evidence and hence arrived at a wrong conclusion.*** 7. ***The Learned Senior Resident Magistrate’s decision is against the weight of law of evidence (sic).*** 8. The appellant prayed for following verbatim relief: ***“WHEREFORE, the plaintiff prays for this Honourable Court to enter judgment for the plaintiff against the defendant for the following:-*** ***(a) An order of permanent injunction restraining the defendant, her agents, servants or employee from entering or any way interfering with the plaintiff’s user and occupation of LR Igoji/Kinoro/845.*** ***(b) Costs of the suit and interest.”*** . **Appellant’s Submissions** 1. The appeal was canvassed through written submissions dated 18/5/2026, filed by ***M/s Ayub Anampiu & Company Advocates***. Counsel for the appellant submitted that, in her case before the trial court, the appellant stated that apart from the land purchase, the deceased promised to employ two of her children but he defaulted. Counsel added that the appellant contended in the trial court that the deceased forcibly entered the suit land without her consent and started developing the land. Counsel further submitted that the respondent did not prove their case to the required standard. 2. Counsel argued that failure of the parties to procure consent of the Land Control Board rendered the agreement voidable, adding that the purchaser was only entitled to a refund of the purchase price because he had entered the land forcibly. Counsel further argued that the purchaser having entered the suit land forcibly, a constructive trust did not arise. Counsel urged the court to allow the application. **Respondent’s Submissions** 1. The respondent filed written submissions dated 18/12/2025 through ***M/s Gichunge Muthuri & Co Advocates***. Counsel for the respondent identified the following as the issues that fell for determination in the appeal: (i) Whether the appeal was filed within the stipulated time; (ii Whether the appellant proved her case on a balance of probabilities; (iii) Whether the respondent proved his counterclaim ; and (iv) Who should pay costs of the appeal. 2. Citing the pronouncement of the Supreme Court of Kenya in ***Sonko v County Assembly of Nairobi City & 11 others*** (***Petition 11 of 2022***) and the pronouncement of the court in ***Peter v Sunday Post Limited (195 8) EA 424***, counsel submitted that a first appellate court should give deference to the findings of the trial court on factual issues. 3. Counsel pointed out that the limitation period for filing an appeal to this court was 30 days, adding that the impugned Judgment was delivered on 28/11/2024. Counsel argued that a look at the Case Tracking System (CTS) confirmed that this appeal was filed 9 days outside the prescribed time. Counsel argued that where an appeal is filed outside the prescribed limitation period, the appellate court lacks jurisdiction to entertain it. Counsel urged the court to find so. 4. On whether the appellant proved her case on a balance of probabilities, counsel pointed out that the appellant admitted that she entered into a sale agreement dated 31/12/20214 with the deceased and she received the agreed purchase price of Kshs. 700,000 from the deceased. Counsel added that the appellant also admitted that she put the deceased in possession of the suit land in terms of clause 7 of the sale agreement, adding that the deceased’s and the estate’s occupation of the suit land was not denied by the appellant. Counsel pointed out that the deceased and the estate developed the land. 5. Citing the pronouncements of the Court of Appeal in: (i) ***Macharia Mwangi Maina & 87 others v Davidson Mwangi Kagiri (2014) eKLR***; and (ii) ***Willy Kimutai Kitilit v Michael Kibet (2018) eKLR,*** counsel submitted that lack of consent of the Land Control Board does not defeat the equitable principle of trust and urged the court to find so. Counsel added that the respondent properly proved the estate’s counterclaim. 6. On costs, counsel cited **Section 27** of the **Civil Procedure Act** and urged the court to find the appellant liable to pay costs of this appeal. **Analysis and Determination** 1. I have read and considered the entire original record of the trial court and the record filed in this appeal; the grounds of appeal; and the parties’ submissions in the appeal. I have also considered the legal frameworks and the prevailing jurisprudence on the key issues that fall for determination in the appeal. The key issues that fall for determination in the appeal are: (i) Whether the estate of the late Stephen Mutai M’Imanyara was entitled to the 0.75 acre portion of land parcel number **Igoji/Kinoro/845** under the doctrine of constructive trust; (ii) Whether the appellant was entitled to a repossession of the 0.75 acre portion that she sold to the late M’Imanyara in 2014; and (iii) Whether the appellant brought this appeal within the prescribed limitation period. I will analyse and dispose the three issues sequentially in the above order. Before I do that, I will outline the principle that guides this court when exercising jurisdiction as an appellate court. 2. The task of a first appellate court was summarized by the Court of Appeal in the case of ***Susan Munyi v Keshar shinai (2013) eKLR*** as follows: ***“As a first appellate court our duty of course is to approach the whole evidence on record from a fresh perspective and with an open mind. We are to analyze, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive to our own independent conclusions.”*** 1. The principle was similarly outlined in ***Abok James Odera t/a A J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR*** as follows: ***“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.”*** 1. Did the estate of the late M’Imanyara prove that they had acquired title to the 0.75 acre portion of the suit land under the doctrine of constructive trust? A constructive trust is a common law equitable remedy by which a court recognizes that a claimant has a better right to certain property than the person who has the legal title to it [*See* ***Blacks Law Dictionary****,* ***Tenth Edition, page 1742***]. The Constitution of Kenya 2010 in **Article 10(2) (b)** recognizes equity as a value and principle that shall be applied in the interpretation of any law. 2. It is by dint of the above express constitutional dictate that post-2010, Kenya’s courts have departed from the pre-2010 interpretation of the framework in the Land Control Act. Post-2010, the Court of Appeal and the Environment and Land Court have been unequivocal that where a land owner has sold land; has received full purchase price; and has allowed the purchaser to take possession, he holds the sold land as a constructive trustee and he cannot turn around to say that because of his own failure to complete the conveyance process, he is entitled to repossess the land. 3. In ***Macharia Mwangi Maina & 87 others v Davidson Mwangi Karigi [2014] eKLR*** the Court of Appeal upheld the doctrine of constructive trust in the interpretation of the **Land Control Act** in the following words: ***“We take note that the judicial decisions cited by the respondent were all made prior to the promulgation of the 2010*** [***Constitution of Kenya***](https://kenyalaw.org/akn/ke/act/2010/constitution)***and before the Overriding Objective principles were enacted into the*** [***Appellate Jurisdiction Act***](https://kenyalaw.org/akn/ke/act/1977/15)***, 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 v 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. In the subsequent case of **W*illy Kimutai Kitilit v Michael Kibet [2018] KECA 573 (KLR),*** the Court of Appeal, similarly, invoked the doctrine of constrictive trust in its interpretation of the framework in the Land Control Act as follows: ***“There is another stronger reason for applying the doctrines of constructive trust and proprietary estoppel to the*** [***Land Control Act***](https://kenyalaw.org/akn/ke/act/1967/34)***. By Article 10(2) (b) of*** [***the Constitution***](https://kenyalaw.org/akn/ke/act/2010/constitution) ***of Kenya, equity is one of the national values which binds the courts in interpreting any law. Further, by Article 159(2) (e), the courts in exercising judicial authority are required to protect and promote the purpose and principles of*** [***the Constitution***](https://kenyalaw.org/akn/ke/act/2010/constitution)***. Moreover, as stated before, by virtue of clause 7 of the Transitional and Consequential Provisions in the Sixth Schedule to*** [***the Constitution***](https://kenyalaw.org/akn/ke/act/2010/constitution)***, the*** [***Land Control Act***](https://kenyalaw.org/akn/ke/act/1967/34) ***should be construed with the alterations, adaptations, and exceptions necessary to bring it into conformity with*** [***the Constitution***](https://kenyalaw.org/akn/ke/act/2010/constitution)***.”*** 1. The prevailing jurisprudence therefore is that, where a registered land owner sells land, receives purchase price in full and permits the purchaser to take possession of the sold land, a constructive trust crystalizes and the seller becomes a trustee in so far as he continues to hold the title to the already sold land. 2. In the suit that gave rise to this appeal, the appellant admitted in her pleadings and evidence that she sold a 0.75 acre portion of the suit land to the late M’Imanyara at a consideration of Kshs 700,0000 in 2014. She also admitted in her evidence in cross-examination that she received purchase price in full. She contended that M’Imanyara forcibly took possession of the land but during cross-examination, she admitted that pursuant to Clause 7 of the sale agreement dated 31/12/2014, parties to the agreement mutually agreed that the purchaser was to take possession of the 0.75 acre portion immediately on execution of the sale agreement. There was evidence that the late M’Imanyara peacefully took possession in tandem with Clause 7 and had been in possession of the 0.75 acre portion and had developed it by planting tea on it. They were the ones plucking the tea. 3. The appellant did not tender any evidence to support her allegation of forcible possession by the late M’Imanyara. What emerged is that the appellant hoped that the late M’Imanyara would extend to her the favour of securing employment for her two sons. She sought to pursue a repossession of the sold land after Imanyara died before securing employment for her two sons. Regrettably, this was not part of the land sale contract. 4. Having evaluated the above evidence and the prevailing jurisprudence, it is clear to this court that the late M’Imanyara’s title to the 0.75 acre portion fully crystalized under the doctrine of constructive trust. The 0.75 acre position was no longer available for repossession by the appellant. Consequently, the finding of the court on the first issue is that, the estate of the late M’Imanyara was and is entitled to the 0.75 acre portion of the suit land under the doctrine of constructive trust. 5. In light of the finding on the first issue, it logically follows that the appellant was not entitled to a repossession of the 0.75 acre portion that she had sold to the late M’Imanyara in 2014. 6. Was this appeal brought within the prescribed limitation period? Both **Section 16A** of the **Environment and Land Court Act** and **Section 79G** of the **Civil Procedure Act** provide for a limitation period of 30 days. Both statutes vest in this court powers to enlarge time or admit an appeal outside the 30 days limitation period. 7. The impugned judgement was rendered on 28/11/2024. The 30 days limitation period lapsed on 28/12/2024 which was a Saturday. The last day for filing the appeal was, therefore, Monday 30/12/2024. The appeal was filed on 6/1/2025. This was, clearly, outside the limitation period of 30 days. The respondent was expected to move the court to strike out the appeal if he did not want the appeal to be admitted for hearing and disposal on merit. He did not do that. To the contrary, when the appeal came up before the Judge for the first time on 17/11/2025, counsel for the respondent requested the court to admit the appeal and dispose it on merit. Consequently, the appeal was admitted on 17/11/2025 for consideration and disposal on merit. 8. Given the above context, I do not think there is merit in the respondent’s submission that the court lacks jurisdiction to consider the appeal on account of the fact that it was filed outside the prescribed limitation period. The appeal will fail because it lacks merit; not because it was filed outside the limitation period. 9. On costs, the general principle in **Section 27** of the **Civil Procedure Act** is that costs follow the event. Consequently, the appellant shall bear costs of the appeal. **Disposal Orders** 1. Having evaluated the appeal, it is the finding of this court that the appeal lacks merit. The appeal is rejected and dismissed. The appellant shall bear costs of the appeal. **DATED, SIGNED AND DELIVERED AT MERU THIS 24TH DAY OF** **JULY, 2026.** **B M EBOSO [MR]** **ELC JUDGE**