Joseph Masita Airo v Turfosa Anyango Airo & Fintar Akinyi Airo

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA** **AT HOMA BAY** **ELC NO. E079 OF 2025 (OS)** JOSEPH MASITA AIRO..................................................APPLICANT VERSUS TURFOSA ANYANGO AIRO......................................1ST RESPONDENT FINTAR AKINYI AIRO..............................................2ND RESPONDENT **JUDGMENT** 1. The suit was commenced by way of originating summons dated 26th September 2025, brought under Order 37 Rule 8 of the Civil Procedure Rules, 2010 and Section 38 of the Limitation of Actions Act, Chapter 22 of the Laws of Kenya. The applicant seeks the following orders against the respondents sued in the capacity as administrators of the estates of the late Petro Airo Okoth: 2. **A declaration that the Applicant is entitled, by way of adverse possession, to a portion of land measuring approximately 0.65 Ha or thereabout, being part of land known as Kabondo/Kasewe/884.** 3. **A declaration that the late Petro Airo Okoth held the said portion of Kabondo/Kasewe/884 in trust of the Applicant.** 4. **An order directed at Sub-County Land Registrar, Kosele to register the Applicant as the proprietor of the said portion of land** 5. **Costs of the suit.** 6. The Originating Summons is supported by the affidavit sworn on 26th September 2025. He states that he is a resident of Karoko village in Rachuonyo East Sub-County and grandson of the late Joel Okoth Migeni. He states that the land on which he resides was given to him by the said grandfather in 1974, and that in 1989, he moved onto the land and built a semi-permanent house where he has lived continuously to date- 36 years as per the sworn affidavit. He has planted trees and developed the land with a semi-permanent house, and that he knows no other home. **Applicant’s Case** 1. The applicant avers that the late Petro Airo Okoth was registered as proprietor of the larger parcel Kabondo/Kasewe/884, in the course of land adjudication at a time when the Applicant and one Joseph Hosea were still young, and that Petro Aira Okoth held the land in trust in that capacity. He claims he has been in exclusive and uninterrupted possession of the suit property for 36 years. 2. The applicant further avers that upon the death of Petro Airo Okoth, the latter wives filed Succession Cause No. 187 of 2021 at the Chief Magistrates Court at Oyugis, obtained a grant, and proceeded to subdivide the whole of Kabondo/Kasewe/884 in 2021 without allocating him the portion of land he had occupied and developed. He avers that on 23rd January 2024 a family meeting was convened at which it was resolved that he should be recognized as one of the beneficiaries of the estate, and that despite this, nothing further was done. 3. He further states that the late Petro Airo Okoth died without ever laying claim to the portion in the Applicant’s occupation and that the title remains registered in their late husband’s name thus the respondents’ registered in their late husband’s name thus the respondent resistance, notwithstanding that any right of the estate to recover the portion in the Applicant’s possession is in his view, time barred under the limitation of Actions Act. 4. In support of his case, the applicant annexed and at hearing produced the following documentary exhibits; 5. A certified copy of green card for Kabondo/Kasewe/884. 6. The Minutes of the family meeting held on 23rd January 2024. 7. A copy of the title deed of Kabondo/Kasewe/884 8. A copy of an official search dated 25th August 2025 9. Photographs depicting his settlement and development on the disputed portion. **Service** 1. The originating summons and supporting affidavit were served upon the respondents on at least two occasions, the least being on 30th January 2026, and affidavit of service filed in court. Despite due service, the Respondents did not enter appearance, file any replying affidavit, or otherwise participate in these proceedings at any stage. The matter was accordingly set down for formal proof. 2. During hearing, the Applicant adopted his supporting affidavit and witness statement as his evidence in chief. He also produced five documentary evidence which were also adopted. He testified that the respondents have taken no active steps to occupy, develop, or assert control over the portion of land in his possession, despite his efforts over time to engage them on the matter. He testified that he wished the court to grant the judgment as prayed for costs. Being unchallenged, this evidence stands as the totality of the material before the court. Issues for determination 1. The issues arising from the pleadings and the evidence for determination are as follows; 2. Whether the applicant has discharged the burden of proving his claim on a balance of probabilities despite being a formal proof. 3. Whether the Applicant has established the essential elements of adverse possession over the suit property. 4. Whether an alternative or in addition, a trust arose in the Applicant’s favour over the suit property. 5. What orders and reliefs, if any, the court should grant including costs. **Determination.** 1. It is well established that the non-appearance of a defendant does not relieve a plaintiff of the burden of proving his case. A formal proof hearing is not a rubber stamp, and the court must still be satisfied, on the evidence tendered, that the claimant is entitled to the relief sought. This principle has been affirmed in numerous decisions of the superior courts such as in the case of **Kirugi and Another v Kabiya and 3 others (1987) (KLR 347)** (Court of Appeal), dealing with undefended suit generally, and with claims of adverse possession in particular; where the courts have repeatedly cautioned that claims of this nature which calls for extinguishing a registered proprietor’s title needs cogent and credible evidence even where uncontested. The court has approached the Applicant’s case with caution in mind and has scrutinised the affidavit evidence, the oral testimony and the documentary exhibit produced. 2. Considering the section 7, 13, 17 and 38 of the limitation of Actions Act. Case of **Gabriel Mbui v Mukindia Maranga** (1993) eKLR Justice Kuloba stated... **Accordingly, possession taken must not be clandestine; it ripens into a prescriptive title only if it is juridical, and must have none of the vitia possessionis such as clam, vi, aut precario (by stealth, violence or supplication). If in its inception it is vitiated by its clandestine, violent or permissive character, it must lose that character and become open, peaceable and as of right, before it can cause time to run (Chanan Singh, J, in Jandu v Kirpal and another, [1975] E A 225 at p 234). As one reads the decided cases clear requirements may be culled from the cases. That is to say, adverse possession in order to be put up as a plea on which title to land may be claimed, or as a defence to an ejectment suit or suit to recover land from a stranger holding it each of the following requirements must be** **established on a balance of probability by the person who says that by adverse possession a cause of action has arisen or that a suit against him is barred.** 1. The law governing claims for adverse possession is principally found under Sections 7, 13, 17 and 38 of the Limitation of Actions Act, Cap. 22 Laws of Kenya. an action These provisions bar recovery of land, gives a right of action and extinguishes title after a lapse of 12 years and also empowers a trespasser or so called squatter to move to courtafter the expiration of twelve years from the date the right of action accrued. 2. It is now settled principle of law that that mere possession of land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. 1. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. 1. He must continue in the said capacity for the prescribed period under the Limitation Act. Mere long possession for a period of more than 12 years without anything more do not ripen into a title**.” Indian case, AIR 2008 SC 346 Annakili** **vs. Vedanayagam & Ors** 1. Any time an adverse possessor and owner have discussed the adverse possession, permissive agreement may have occurred, and that destroys adverse possession (**Cobb v Lane [1952] 1 All E R 1199; Denning, MR, in Wallis’s Cayton Bay Holidday Camp Ltd v Shell-Mex and B P Ltd [1974] 3 All ER 575 at p 580; Chanan Singh, J, Jandu v Kirpal and another (1975) EA 225 at pp 233, 234, 237; Madan, J (as he then was), in Gatimu Kinguru - v- Muya Gathangi, 1[1976] Kenya L R 253, at pp 257, 258);”** 1. Under Section 24 of the Limitation of Actions Act, such acknowledgment of ownership has the legal effect of resetting the limitation periods. (Benson **Mukuwa Wachira vs** **Assumption Sisters of Nairobi Registered Trustees [2016]** **KECA 227 (KLR))** 1. This element of permissive possession was well explained in **Gabriel Mbui - v- Mukindia Maranya (1993) eKLR, where** Justice Kuloba that to acts done under licence or Permitted m by, or with love of, the owner do not amount to adverse possession and do not give the licensee or permitted entrant any title under the limitation statute. 1. The rule on permissive possession is that possession does not become adverse before the end of the period during which one is permitted to occupy the land and where possession was consensual or contractual in its inception, it cannot be called **“adverse”.** 20.“**Acknowledgment” is defined by Black’s Law Dictionary,** **Ninth Edition, to mean –** **“1. A recognition of something as being factual;** **2. an acceptance of responsibility** **3. the act of making it known that one has received something;** **4. a formal declaration made in the presence of an authorized officer such as a notary public, by someone who signs a document and confirms that the signature is authentic.”** 21.In law, for a trespasser to be said to have acknowledged the title of the owner of the land, the trespasser must be shown to have accepted by conduct or by declaration before the period of twelve years of adverse possession has run out that he, the trespasser, accepts he is on the land with the owner’s permission, consent, or acquiescence and is not on the land adversely to the title of the owner. 22**.** In **Karima v Kenya Airways Limited** (Civil Appeal E015 of 2023)[2025] KECA 1966 (KLR) (21 November 2025) (Judgment) the court held thus ‘’**the evidence produced, including correspondence authored by the deceased, reveals that rather than asserting ownership as of right, the deceased sought to negotiate or plead with the respondent, acknowledging its ownership and seeking consideration. This negates the requirement of hostile possession.** 23. In ***Mutanu Mwanza v Peter Mutua Ngui & Another* [2018]** **eKLR (ELC Case No. 219 of 2015)**, the Environment and Land Court held that where a claimant enters land with the Permission or invitation of the owner, time for purposes of adverse possession does not begin to run until that permission is terminated or the occupation becomes adverse to the owner's interests. Possession founded on licence or consent cannot simultaneously amount to adverse possession.see ***Public*** ***Trustee v Wanduru Ndegwa* [1984] KLR 314**, 24. Justice Angote, in the above matter, found that the occupation of the suit land by the Plaintiff was with the permission of her father. When the father died, the Plaintiff’s entitlement to the suit land could onlyy be acquired in a succession cause and not otherwise. 1. The present case, the Applicant testified that he entered and settled on the disputed portion of land in 1989 after having been allocated the same by his grandfather in 1974. He further testified that he constructed a semi-permanent house, planted trees and has continuously occupied the land as his only home for over thirty-six years. His evidence is corroborated by photographs produced in evidence and remains completely uncontroverted. 2. The certified copy of the green card produced before court shows that parcel No. Kabondo/Kasewe/884 remained registered in the name of the late Petro Airo Okot. There is no evidence of hostile possession since it is apparent that the registered owners had agreed to include the name of the Applicant as one who is entitled to inherit his grandfather’s portion of land and that explains why no step was taken to have him evicted. The minutes of a family meeting confirm this fact. This is essence amounts of acknowledgement of ownership by the title holders and automatically divests the matter from the doctrine of adverse possession. 3. These assertions raise the question whether the Applicant's occupation was averse to the registered proprietor from inception or whether it was by virtue of a family arrangement or customary entitlement. The distinction is significant because possession that begins with the permission or consent of the owner is ordinarily not adverse until such permission is withdrawn or until the possession becomes hostile to the owner's title. 4. In the instant case, although the Applicant states that the land belonged his grandfather and was given as his inheritance and that the 1st Registered owner registered the land when he and his brother were still young, he has not disclosed how and when the said grandfather entered into or acquired ownership. He wants the court to act on the assumption that occupation was hostile and contrary to the owner’s title. He mere says that the deceased was merely registered during adjudication while holding the land for the benefit of other family members and he has not brought forth evidence to confirm how his grandfather occupied the land. The assumption would be the occupation was based on customary systems of land tenure or permissive as such, with the intention of not evicting the family therefrom. 5. In order to extinguish a registered owner’s title to land, the evidence must be watertight as regards the ingredients to be proved before such allegations will be upheld. A decision extinguishing rights protected by the law ought not to be arrived at merely on the basis of allegations without tangible evidence. [M’Riria & 5 others v Muthomi [2025] KECA 951 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2025/951/eng%402025-04-04). 6. As concerns the identity and size of the portion of land sold, the courts have held that the land alleged to be the subject of adverse possession proceedings must be definitely identifiable. (Gatimu **Kinguru vs Muya Gathangi (1976) KLR 253)** 1. Nevertheless,the Applicant's pleadings reveal that his principal grievance is that he was entitled to inherit part of the land because the registered proprietor allegedly held it in trust for him. Indeed, reliance upon the family meeting of 23rd January 2024 recognising him as a beneficiary tends to reinforce an assertion of beneficial entitlement rather than Adverse possession. 2. Accordingly, the court is not satisfied that the Applicant has proved Adverse possession on account on continuous occupation of the suit portion for a period exceeding twelve years. 1. Likewise in the present case it is not in doubt that the occupation of the land by the Applicant was permissive on account of invitation by his grandfather, no hostility ever arose even after the grandfather’s death and he confirms attending family discussions. He was agreeable to the administrators conducting the process of distribution, which implies that if he was an adverse possessor he had relinquished that right. 2. As stated before, mere occupation for a long period of time does not give rise to adverse possession unless the elements of adverse possession are proved. 3. I find that this limb of the Applicants prayer has not been proved and I reject the same. 1. On the issue of a trust, Black’s Law Dictionary 6th Edition page 1817 defines the concept of trust as follows: “ **The right, enforceable solely in equity, to the beneficial enjoyment of property to which another person holds the legal title; a property interest held by one person (the trustee) at the request of another (the settlor) for the benefit of a third party (the beneficiary). For a trust to be valid, it must involve specific property, reflect the settlor’s intent, and be created for a lawful purpose.** 1. Trust is a fiduciary duty regarding property and charging upon a person in whose name the title is registered and creates equitable obligation as against the beneficiary 1. Under **the**[***Trustee Act***](https://kenyalaw.org/akn/ke/act/1929/28)**, “… the expressions “trust” and “trustee” extend to implied and constructive trust, and** **cases where the trustee has a beneficial interest in the trust property** 1. A trustt is considered equity's greatest invention as it is mandatory that the trustee must manage it for the benefit of a beneficiary. 1. A customary trust in the context of Kenyan land law, is a legal concept where land is held by one person or entity, for the benefit of a group or family members, often across generations. It is essentially an intergenerational equity concept where the current holder of the land is entrusted to hold or manage it for the benefit of another or others. 1. Constructive trusts are a creature of the jurisdiction of equity; and implied by the Courts when it is unconscionable for a Defendant with the legal title to property to claim that property or some part beneficially to the prejudice of the claimant. 2. The trust is created independently of the intentions of the parties. It is the conduct of the parties, and in particular the Defendant, that governs the jurisdiction of the Court to impose it 3. This principle derives life from the case of Pallant versus Morgan [1953] Ch., 43. 1. According to the **“Pallant versus Morgan equity**”, if parties agree that one will acquire some specific property for the joint benefit of both of them on terms yet to be agreed, and one, in reliance on another’s agreement, is induced to refrain from attempting to acquire the property, equity will not permit the other, when he acquires the property, to insist on retaining the whole of the benefit for himself to the exclusion of other. 1. The facts in the above case are that the agents of two neighbouring landowners orally agreed in the auction room that the Plaintiff’s agent would refrain from bidding at auction and that the Defendant, if his agent’s bid was successful, would divide the land according to an agreed formula, the details of which were to be agreed later. The Defendant’s agent was successful, but when the parties failed to agree on the details of division the Defendant retained the whole of the land for himself. It was held that although the agreement was incomplete in its detail and too uncertain to be specifically enforceable, the Defendant held the land on trust for himself and the Plaintiff jointly, and that it would amount to sanctioning a fraud on the Defendant’s part to allow him to retain it. 1. The principle was reviewed by the Court of Appeal in Banner Homes PLC versus Luff Developments Ltd [2000] 2 WLR 772. In that case also, two rival bidders made an arrangement concerning the purchase of property. The Defendant conducted himself in a way inconsistent with the agreement, and in an inequitable manner. It was held that a constructive trust (or a duty to account) arose in the circumstances. It was essential that the circumstances made it inequitable for the acquiring party to retain the property for himself in a manner inconsistent with the arrangement or understanding on which the non acquiring party had acted. 1. Chadwick L.J., observed that: “**The equity is invoked where the Defendant has acquired property in circumstances where it would be inequitable to allow him to treat it as his own, and where, because it would be inequitable to allow him to treat the property as his own, it is necessary to impose on him the obligations of a trustee in relation to it”.** 1. In Gissing versus Gissing [1971] AC 886, Diplock L.J., observed that; “**A constructive trust is created by a** **transaction between the trustee and the cestui que trust** **in connection with the acquisition by the trustee of a** **legal estate in land, whenever the trustee has so** **conducted himself that it would be inequitable to allow** **him to deny to the cestui que trust a beneficial interest in** **the property.** 1. Principles of constructive trusts are not alien to this jurisdiction Equity is formally received into Kenyan law under **Section 3(1)(c) of the Judicature Act (Cap 8** Kenyan courts apply English doctrines of equity in force in England on, provided they suit local circumstances. Article 159(2)(d) of the **Constitution of Kenya, 2010**, reinforces equity by mandating that courts administer justice without undue regard to procedural technicalities. 1. Courts in Kenya have codified and recognised the so-called customary trusts not through formal statute writing but through progressive judicial interpretation in their pronouncements, and have ultimately elevated them to overriding land interest. 2. **A customary trust in the context of Kenyan land law, is** **a legal concept where land is held by one person or entity,** **for the benefit of a group or family members, often across** **generations. It is essentially an intergenerational equity** **concept where the current holder of the land is entrusted** **to hold or manage it for the benefit of another or others** 1. Our apex Court in the case **of Shah & 7 others vs. Mombasa Bricks & Tiles Limited & 5 others** [2023] KESC 106 (KLR) also weighed in on this matter as follows: “**The**[***Trustee Act***](https://kenyalaw.org/akn/ke/act/1929/28)**defined a “trust” and “trustee” as extending to implied and constructive trusts. A constructive trust was an equitable instrument which served the purpose of preventing unjust enrichment. Trusts were created either expressly, where the trust property, its purpose and the beneficiaries were clearly stated, or established by the operation of the law. Like in the instant case, where it was not expressly stated, the trust may be established by operation of the law…A constructive trust was a right traceable from the doctrines of equity. It arose in connection with the legal title to property when a party conducted himself in a manner to deny the other party beneficial interest in the property acquired. .”** 53. In [*James Archer & Ano v Inger Christine Archer & 2 Others*](https://kenyalaw.org/akn/ke/judgment/keca/2023/298) (2023) KECA 298 (KLR) the Court of Appeal refering to the definition of trust in -*Black’s Law Dictionary*, went on to state that; -“**There are three types of trusts that can arise with respect to land, as explained in *Elements of Land Law*, 5th Edition by Kevin Gray and Susan Francis Gray at page 824 paragraph 7.1.11:Trusts relating to land can be classified as either express trusts or implied trusts, the latter category subdividing into further categories of resulting and constructive trusts ... Consistently with the characteristic preoccupation of equity, the primacy of intention is exemplified in each of these three cases of trust. The trust is the express very embodiment of an intention explicitly formulated by a legal owner regarding the beneficial ownership of his land. Implied trusts arise by operation of law, but do so against a background of actual or presumed beneficial intentions as to beneficial title. Yet, although premised alike upon intended beneficial ownership, the resulting trust and the constructive trust have traditionally enjoyed distinct spheres of operation.”** 54**.** The pronouncements of the Supreme Court of Kenya in Shah & 7 others vs. Mombasa Bricks & Tiles Limited & 5 others (Supra) that held as follows: “ **While sections 25, 26 and 28 of the**[***Land Registration Act***](https://kenyalaw.org/akn/ke/act/2012/3)**recognized that the rights of a registered proprietor of land were absolute and indefeasible, those were only subject to rights and encumbrances noted in the register and overriding interests. The overriding interests included trusts. In the absence of any limitation as to the trusts, that included constructive trusts. Applying the provisions of article 24 of**[***the Constitution***](https://kenyalaw.org/akn/ke/act/2010/constitution)**therefore, the limitation of the right to property was provided under law, and included a constructive trust. Section 28 of the**[***Land Registration Act***](https://kenyalaw.org/akn/ke/act/2012/3)**provided that the registration was subject to overriding interests. One of the overriding interests was a trust, which included constructive trust…… Constructive trusts could arise in various circumstances, including in land sale agreements. A trust was an equitable remedy which was an intervention against unconscionable conduct. Where the circumstances of the case were such that it would demand that equity treated the legal owner as a trustee, the law would impose a trust. It was imposed by law whenever justice and good conscience required it. A constructive trust can be imported into a land sale agreement to defeat a registered title.”** 55**.** From the above, it can be deduced that a constructive trust is formed whenever, 1. There is a common intention between the parties that the claimant has a beneficial interest in the property; and 2. The claimant acted to his or her detriment in the reasonable belief that by so acting he or she was acquiring a beneficial interest in the land—in other words, it must be inequitable to allow the Defendant to insist on retaining the whole property to the exclusion of the claimant. 3. Where a common intention is not expressly stated, it can be implied by Court when good conscience demands. See; Grant versus Edwards [1986] Ch. 638; and Deane J in Muschinski versus Dodds (1985) 160 CLR 583 at 614. Millet L.J., in Lonrho versus Fayed (No 2) [1992] 1 WLR 1, makes the matter plain when he stated that: **‘’It is… the independent jurisdiction of equity as a Court of conscience to grant relief for every species of fraud and over unconscionable conduct. When appropriate, the Court will grant a proprietary remedy to restore to the Plaintiff property of which he has been wrongly deprived, or to prevent the Defendant from retaining** **a benefit which he has obtained by his own wrong’** 1. The Supreme Court finally settled the question regarding customary land held in trust in Kiebia v M’lintari & another [2018] KESC 22 (KLR), inter alia as follows: **“Flowing from this analysis, we now declare that a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the rights to which a registered proprietor, is subject under the proviso to Section 28 of the Registered**[***Land Act***](https://kenyalaw.org/akn/ke/act/2012/6)**. Under this legal regime, (now repealed), the content of such a trust can take several forms. For example, it may emerge through evidence, that part of the land, now registered, was always reserved for family or clan uses, such as burials, and other traditional rites. It could also be those other parts of the land, depending on the specific group or family setting, were reserved for various future uses, such as construction of houses and other amenities by youths graduating into manhood. The categories of a customary trust are therefore not closed. It is for the court to make a determination, on the basis of evidence, as to which category of such a trust subsists as to bind the registered proprietor.”** Here is what the Apex Court went on to state what some of the elements that would qualify a claimant as a trustee in Kebia supra thus: **“Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in Kiarie v. Kinuthia, that what is essential is the nature of the holding of the land and intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are:** 1. **The land in question was before registration, family, clan or group land;** 2. **The claimant belongs to such family, clan, or group;** 3. **The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous;** 4. **The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances;** 5. **The claim is directed against the registered proprietor who is a member of the** **family, clan or group.”** 6. [Roche v Roche & another [2025] KECA 1637 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1637/eng%402025-10-03) the court of appeal stated thus: **‘’Consequently, upon re-evaluating the evidence in the record of appeal afresh, and considering the rival submissions, we arrive at our own conclusion that Cyprian is entitled to a share of her father’s property just like her brothers, by virtue of Section 38 L.S.A and Article 27. Therefore, the learned Judge was correct in holding that John held the one acre of their father’s estate in trust for her. We find that the land on which the homestead stands is held in trust on behalf of Cyprian as instructed by the deceased matriarch.** 1. Possession confers possessory title upon a holder of land, good and enforceable against any other persons who cannot show a better title.’’ 1. In Ugandan case of **Boiti Bonny versus Imalingat Lawrence Court of Appeal** Civil Appeal No. 239 of 2016 Gashirabaki J.A, held **that: “Possession confers a possessory title upon a holder of land and a recognizable enforceable right to exclude all others but persons with a better title. Possession of land is itself a good title against anyone who cannot show a prior and therefore better right to possession (see Asher v.Whitlock(1865) LR 1 QB1).** **The right to possession of land can be inherited, devised or conveyed. In Asher versus Whitlock cited above, Cockburn CJ stated that; “But authorities are conclusive to shew that a person in peaceable possession of land has, as against everyone but the true owner, an interest capable of being inherited, devised or conveyed.”** 1. Similarly, in **Atunya Valiryano v. Okeny Delphino (Civil Appeal No. 0051** of 2017) is a notable Ugandan High Court land case presided over by Hon. Justice Stephen Mubiru. The ruling serves as a foundational legal reference for defining customary land tenure, family/clan land rights, and the historical transition of public and customary lands under Ugandan land. Judge Mubiru J. held that: 25 “**At common law, factual possession of land signifies an appropriate degree of exclusive physical control. For vast lands, possession requires knowledge of its boundaries and the ability to exercise control over them (see Powell v. McFarlane (1977) 38 P&CR 452). In respect of claims over adjacent unoccupied land, there should be evidence that the claimant deals with the cleared and un-cleared portions of the land, co-extensive with the boundaries, in the same way that a rightful owner would deal with it Once there is evidence of open, notorious, continuous, exclusive possession or occupation of any part thereof as would constructively apply to all of it, in such cases occupancy of a part may be construed as possession of the entire land where there is no actual adverse possession of the parts not actually occupied by the claimant. A person exercising such possession therefore, for all practical purposes, is the "owner" of the land since it is trite that "possession is good against all the world except the person who can show a good title" (see Asher v. Whitlock (1865) LR 1 QB 1, per Cockburn CJ at 5** 1. I have found the above principles in the cases emanating from our Jurisdiction persuasive, and I deem it fit to apply them to the instant case. 1. The disposition of the question above starts from my finding that the evidence of the Plaintiff is that he had acquired land though inheritance, which is not disputed by virtue of the meeting that was convened between his family and the family of the deceased title holder. 2. The plaintiff states that Peter Airo Okoth, now deceased, Registered himself as owner when he and his brother were still minors. 1. That in the year 2021 the wives to the deceased moved to Oyugis Court where they subdivided the land without surrendering his grandfather’s share. 1. A meeting was held on 23rd January ,2024 and it was resolved his name be incorporated as a beneficiary of the estate. 1. In the minutes, the Respondents recognised that the Applicant is entitled to inherit 0.65 Ha out of 2.4 Ha. 1. The applicant has produced pictures to confirm occupation and heavy investment on the land. 1. In order to determine whether a person was in peaceful Possession of land before the opposite party trespassed on it, oral testimony of witnesses may be relied upon. 58.However, the evidence in the form of physical features found at the locus in quo adds credence to the oral testimony 59.Again, in the Ugandan Case of Komakech **Walter versus Dr.** **Okot Christopher,HCCA No.114 of 2018**, Mubiru J, underscored the importance of physical features found at the locus in quo in determining the credibility of oral testimony. He stated that; “**The credibility of the Appellant's version could then be** **determined by assessing how it did or did not fit in with the available physical evidence. Unless fabricated or staged,physical evidence is not subject to the limitations of lies, impeachment, intimidation, forgetfulness or pursuit of self interest that oral evidence is prone to. Physical evidence only has to be detected, preserved, evaluated, and explained. Once the possibility of its being fabricated or staged is ruled out, it should then be examined and compared with the witnesses' testimony. The Court may then determine the reliability of their respective accounts. The Court looks at the physical evidence and attempts to determine how it fits into the overall scenario as presented in the contending versions.”** 60. Therefore, the court finds that the Applicant has proved his entitlement to the portion measuring approximately **0.65** **hectares** comprised in land parcel **Kabondo/Kasewe/884** by way of constructive trust based on oral evidence and documents produced in support. 61. The Applicant also availed photographs to confirm occupation and investment on the property without any objection from the registered owner and or his successors 62. The Respondents have equally not disputed that he is entitled to a share that was given to him by his grandfather. This is confirmed by the family minutes 63.The court notes and finds that there is an existing agreement or arrangement to share the property beneficially to the justify creation of a constructive trust, and it is so declared 64. Where a constructive trust is inferred by Court, it is left to it to determine what share the Plaintiff is entitled to. Where there is an express common agreement, the Plaintiff is obviously left to claim a share based on what was agreed. See Eves versus Eves [1975] 1 WLR 1338. 65. The aapplicant has also made improvements on the land. The court has observed that he has even constructed his home. In the circumstances, it is only right and just that his interests be safeguarded to continually occupy the said parcel of land. The interest of justice dictates that the title deed issued in favour of the respondents be interfered with. 66. As regards costs, Section 27(1) of the Civil Procedure Act provides those costs follow the event unless the court, for good reason, orders otherwise. 67. Although the Applicant has substantially succeeded in establishing his claim for constructive trust, the dispute before the court concerns occupation of family land and was brought against the Respondents in their capacity as administrators of the estate of the deceased. 68. Further, the Respondents did not actively participate in the proceedings though served though in Principle they were agreeable to surrendering the share due to the Applicant. 69.I note that the Applicant came to court on account of reluctance by the Defendant to give him his entitlement by way of succession 1. The following orders shall issue to dispose of the suit, namely: 2. **The prayer for declaration that the Applicant is entitled by way of Adverse possession to a by portion of land by measurement 0.65 Hectares or thereabout known as KABONDO/KASEWE/884 is dismissed.** 3. **A declaration shall issue that a portion property known as KABONDO/KASEWE/884measuring 0.65 Hectares occupied by the Applicant is held in trust by the Respondents TRUPHOSA ANYANGO AIRO & FINTAR AKINYI AIRO, being Administrators of the Estate of the LATE PETER AIRO OKOTH, as trustee for the Plaintiff, JOSEPH MISITA OKETCH** 4. **An order shall and hereby issue directing the Defendants to transfer a portion of the said 0.65 Hectares being part Plot No KABONDO/KASEWE/884 to the Plaintiff JOSEPH MISITA OKETCH within 60 days of the date of this judgement.** 5. **That failure to II above the Deputy Registrar of the Environment and Land Court, HOMABAY do sign the transfer forms in favour of the Plaintiff.** **IV. Due to the nature of the dispute, there shall be no order** **as to costs** **Judgement, dated and delivered at Homabay virtually through** **Microsoft teams Video Conferencing Platform on this 23rd Day of July,2026** **In the presence of:** 1. No appearance for the Plaintiff. 2. Mr. Achillah for the Defendant 3. Court Assistant -Awino. **JUSTICE J.W. WANYONYI**