https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5123

**IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC APPEAL NO. E093 OF 2024** **JOSEPH SHAPENA**..............................................................**APPELLANT** **VERSUS** **ERNEST ACHESA SHITIAVAI**...........................................**RESPONDENT** *(Being an appeal from the Judgment of Hon. D. O. Mac’Andere, Senior Resident Magistrate, delivered on 20th December 2024 in Kakamega MCELC No. E185 of 2023)* **JUDGMENT** **A. INTRODUCTION** 1. This is a first appeal from the judgment of the Senior Resident Magistrate in Kakamega MCELC No. E185 of 2023 delivered on 20th December 2024. The appellant was the plaintiff before the subordinate court. He sought a declaration that a constructive trust had arisen in his favour over a portion measuring approximately 0.03 hectares comprised in land parcel number **ISUKHA/SHIRERE/7916**, said to have arisen from parcel number **ISUKHA/SHIRERE/7860**. He also sought an order compelling the respondent to transfer that portion to him. 2. The appellant’s case was that, on or about 16th July 2000, he purchased the disputed portion from the respondent for Kshs. 45,000/=. He asserted that the agreed consideration was paid in full; that the portion was identified and measured on the ground; and that he thereafter entered into possession. He maintained that he constructed a house and a toilet on the portion and planted trees thereon. His case was that he remained in occupation for many years until the dispute emerged in or about 2022. 3. The respondent denied the alleged sale. He denied executing the handwritten agreement produced by the appellant and denied receipt of the alleged consideration. His position was that the appellant had no enforceable or equitable interest in the land. He contended, in substance, that the appellant’s occupation was not pursuant to a sale but was attributable to family accommodation or permission. 4. The learned trial magistrate dismissed the appellant’s suit. The court found that the appellant had not sufficiently proved payment of the purchase price. It further held that, without credible proof of consideration, the appellant had not established the factual foundation upon which a constructive trust could arise. 5. Aggrieved by that decision, the appellant lodged the present appeal. **B. THE APPEAL** 1. The memorandum of appeal sets out several grounds. In substance, the appellant faults the learned magistrate for finding that he had not proved his case on a balance of probabilities; for holding that consideration had not been proved; for failing to find that a sale transaction had taken place; for misconstruing the sale agreement; and for failing to give due weight to the evidence of occupation, possession and development of the disputed portion. 2. The appellant’s written submissions were to the effect that the handwritten agreement was not a casual or isolated document. He submitted that it recorded the sale, the land concerned and the consideration; that the person who prepared the agreement and measured the portion testified; and that the appellant’s occupation and developments were corroborated by the evidence. He further submitted that the respondent’s denial of the agreement and signature was unsupported by any report to the police, forensic evidence or other cogent material capable of displacing the evidence adduced by the appellant. 3. The appellant also argued that the absence of Land Control Board consent did not extinguish the equitable claim made in the suit. He invoked the doctrines of constructive trust and proprietary estoppel, contending that it would be inequitable to permit the respondent to retain the land after receiving the consideration, allowing the appellant to take possession and permitting him to develop the portion over a long period. 4. The respondent supported the judgment of the trial court. His position was that the appellant did not prove the alleged payment, that the sale agreement was contested and that no enforceable interest could arise from a controlled transaction in respect of which consent of the Land Control Board had not been obtained. **C. DUTY OF A FIRST APPELLATE COURT** 1. This being a first appeal, this Court is required to reconsider, re-evaluate and analyse the evidence afresh, and to draw its own conclusions from the record. That duty must, however, be performed with appropriate restraint. The trial court had the advantage of seeing and hearing the witnesses testify. This Court must therefore make due allowance for that advantage, while remaining obliged to determine whether the conclusions reached by the trial court were supported by the evidence and by the applicable law. See ***Selle & Another v Associated Motor Boat Co. Ltd* [1968] EA 123**. 2. The obligation of a first appellate court is not discharged by merely stating whether it agrees or disagrees with the trial court. It must interrogate the pleadings, identify the issues properly arising from them, assess the material evidence and determine whether the decision appealed from can safely stand. An appellate court may interfere where the trial court acted on an erroneous principle, misapprehended the evidence, failed to take account of relevant material, took into account irrelevant considerations, or reached a conclusion not supported by the evidence as a whole. **D. ISSUES FOR DETERMINATION** 1. Upon considering the pleadings, the evidence, the judgment appealed from and the parties’ submissions, the following issues arise for determination: 2. Whether the appellant proved, on a balance of probabilities, that a sale transaction was entered into between him and the respondent in respect of the disputed portion. 3. Whether the appellant proved payment of the agreed consideration and entry into possession pursuant to the alleged transaction. 4. Whether the absence of Land Control Board consent defeats the appellant’s claim in the circumstances of this case. 5. Whether the facts established on the evidence gave rise to a constructive trust in favour of the appellant. 6. What orders ought to issue. **E. WHETHER A SALE TRANSACTION WAS PROVED** 1. The appellant’s case rested substantially on a handwritten agreement dated 16th July 2000. His evidence was that the agreement recorded the sale of a portion measuring 0.03 hectares at an agreed consideration of Kshs. 45,000/=. He stated that, at the time of the transaction, the land was registered in the name of the respondent’s brother, but that the respondent had a beneficial interest in the family land and was selling the portion that later became identifiable within the resultant parcel. 2. The appellant did not rely on the agreement alone. He called evidence intended to show the circumstances in which the transaction took place. In particular, the evidence of the person said to have measured the portion and prepared the agreement was material. That witness testified that he attended the land, identified and measured the portion said to have been sold, prepared the agreement and witnessed the transaction. His evidence was directed not merely at the existence of the document, but also at the identity of the portion, the surrounding circumstances of the transaction and the appellant’s subsequent entry into possession. 3. The respondent denied selling the land and denied signing the agreement. A denial of execution is, of course, a matter that the court must treat seriously. It is not sufficient for a claimant to produce a document whose authenticity has been genuinely and credibly put in issue and simply invite the court to accept it without examining the whole of the evidence. The appellant nonetheless remains under a legal obligation to prove his case on a balance of probabilities. 4. However, the respondent’s denial had to be assessed against the entirety of the evidence. The respondent did not place before the court any handwriting or forensic evidence to demonstrate that the signature or mark attributed to him was not his. There was no evidence that he reported the alleged forgery to the police. There was equally no evidence of any prompt objection or action taken at or near the time when the appellant entered the land, constructed a home and occupied the portion openly. 5. The absence of forensic evidence is not by itself determinative. A litigant is not invariably required to call a document examiner before disputing a signature. The central question is whether, upon considering all the evidence, the document and the circumstances surrounding it are more probably authentic than not. In that regard, the testimony of the person who prepared the agreement, measured the portion and witnessed the transaction carried considerable evidential weight. It was not shown to have been materially shaken in cross-examination or displaced by contrary evidence. 6. The respondent’s account was that the appellant’s occupation was due to family permission. That explanation was possible in the abstract. But it required a coherent factual foundation. The court was entitled to ask: why would a person be permitted to occupy a defined portion of land for many years, construct a home, establish developments and remain in possession without clear evidence of the terms, limits or revocability of the alleged permission? The respondent did not sufficiently explain those matters. 7. The evidence of the agreement, the marking out of the portion, the appellant’s subsequent occupation and the absence of any meaningful contemporaneous challenge to his occupation are mutually reinforcing circumstances. Taken together, they make the appellant’s account of a sale transaction more probable than the respondent’s explanation that he was merely tolerated on the land as a family member. 8. I therefore find that the learned magistrate did not give adequate weight to the cumulative evidential value of the agreement, the testimony of the witness who prepared it, the identification of the portion on the ground and the appellant’s long occupation. On a fresh evaluation of the record, I am satisfied that the appellant proved, on a balance of probabilities, that a sale transaction was entered into between the parties in respect of the disputed portion. **F. WHETHER PAYMENT OF CONSIDERATION AND POSSESSION WERE PROVED** 1. The central reason given by the learned magistrate for dismissing the suit was the absence of adequate proof that the purchase price had been paid. The court treated the lack of independent documentary proof of payment as fatal to the appellant’s claim. 2. It is true that the appellant did not produce a receipt, bank record, acknowledgement separate from the agreement or other independent documentary evidence of payment. That circumstance was relevant and could not be ignored. In a land transaction, especially one said to involve payment in cash, evidence of payment remains a material consideration. The absence of such evidence may weaken a claim, depending on the terms of the agreement and the other circumstances of the case. 3. But the absence of an independent receipt did not, in the circumstances of this case, inevitably mean that payment had not been made. The court was required to examine the agreement itself, the oral evidence surrounding it and the conduct of the parties after its execution. Where an agreement states that consideration has been paid in full, that statement is relevant evidence of payment. Its weight depends on the credibility of the document and the evidence as a whole. 4. The appellant’s position was that the agreement expressly indicated that the agreed amount had been paid in full. The witness who prepared the agreement supported the appellant’s account of the transaction. The appellant further established that he entered upon the land and remained there for many years, during which period he made developments. Those circumstances were not conclusive proof of payment, but they were strongly consistent with the appellant having entered the land pursuant to a concluded transaction rather than by mere temporary permission. 5. The respondent suggested that a balance had remained unpaid. Yet no credible evidence was produced of any demand, notice, dispute or attempt to recover such balance during the many years that the appellant remained on the land. No explanation was offered as to why, if the appellant had failed to pay a substantial part of the purchase price, the respondent allowed him to remain in possession and make permanent developments without taking timely steps to enforce payment, rescind the agreement or recover possession. 6. The evidence must be evaluated in the context of the period in which the alleged transaction occurred. The agreement was said to have been made in 2000, well before the present dispute. The court cannot demand documentary sophistication from parties to a rural transaction in a manner that defeats credible oral and circumstantial evidence. The question is not whether the appellant produced the best imaginable evidence of payment. The question is whether he proved payment on a balance of probabilities. 7. In my assessment, the combination of the written agreement recording payment, the evidence of the transaction, the appellant’s possession, the developments made on the land and the respondent’s failure to take timely action is sufficient to establish that the agreed consideration was paid. The learned magistrate therefore erred in treating the absence of a separate receipt as conclusive against the appellant. 8. The appellant also proved that he took possession of the portion and remained in occupation for a considerable period. His occupation was not fleeting or casual. The evidence was that he constructed a home, a toilet and planted trees. These were acts of possession and development ordinarily associated with a person who believes that he has acquired a permanent interest in land. They were also capable of being seen and known by the respondent and other family members. 9. I accordingly find that the appellant proved, on a balance of probabilities, that he paid the agreed consideration, entered into possession and developed the disputed portion pursuant to the sale transaction. **G. EFFECT OF THE ABSENCE OF LAND CONTROL BOARD CONSENT** 1. It was common ground that Land Control Board consent was not obtained. The question is whether that omission conclusively defeats the appellant’s claim. 2. The authorities advanced by the parties have been considered. The appellant’s reliance on ***Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri [2014] eKLR*** and ***Willy Kimutai Kitilit v Michael Kibet [2018] eKLR*** is well founded to the limited extent that those decisions recognise that the absence of Land Control Board consent does not, in every case, preclude the court from giving effect to a constructive trust or proprietary estoppel arising from the parties’ conduct. Those authorities do not, however, displace the Land Control Act or validate a void agreement for sale as such. Their effect is that, where the evidence establishes payment, possession, detrimental reliance and conduct making it unconscionable for the vendor to rely strictly on legal title, equity may impose an obligation independently of contractual enforcement. 3. Conversely, the respondent’s submission that a controlled transaction lacking the requisite consent is void under section 6 of the Land Control Act states the general legal position correctly. That principle would defeat a conventional claim for specific performance founded solely upon the agreement of 16th July 2000. It does not, on the facts now established, conclusively answer the appellant’s distinct equitable claim. The appellant does not succeed because the agreement remains enforceable; he succeeds because the evidence demonstrates a completed course of conduct involving payment of the agreed consideration, entry into possession of an identified portion, long occupation and development with no satisfactory contemporaneous challenge, from which a constructive trust arose. The respondent’s reliance on the statutory invalidity of the agreement is therefore distinguishable from, and does not defeat, the equitable obligation found in this case. 4. A transaction involving agricultural land within a land control area is generally a controlled transaction under section 6 of the Land Control Act. A controlled transaction becomes void for all purposes if the requisite consent is not obtained within the stipulated period, unless the relevant statutory machinery is invoked. Ordinarily, a party cannot obtain specific performance of an agreement rendered void by operation of the Act. 5. The dispute before the Court, however, is not a conventional claim for specific performance of a subsisting contract. It is a claim founded on the equitable consequences of the parties’ conduct after the agreement. The appellant contends that he paid the price, entered possession, made developments and remained on the land for many years with the knowledge and acquiescence of the respondent. 6. The courts have recognised that the Land Control Act was not intended to become an instrument for unjust enrichment or unconscionable conduct. In ***Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri* [2014] eKLR**, the Court of Appeal held that the absence of consent did not necessarily prevent a court from recognising constructive trust or proprietary estoppel where purchasers had paid consideration and been allowed into possession. The Court stressed that equity may intervene where the vendor’s conduct makes it unconscionable for him to rely on legal title alone. 7. The same approach was affirmed in ***Willy Kimutai Kitilit v Michael Kibet* [2018] eKLR**. The Court of Appeal held that the equitable doctrines of constructive trust and proprietary estoppel apply in appropriate cases involving controlled transactions. The Court made clear that the Land Control Act should not be applied mechanically in a manner that enables a party who has received the benefit of a transaction to repudiate the corresponding equitable obligation. 8. The principle does not mean that every void land sale automatically gives rise to a trust. Equity does not displace statute merely because one party has suffered disappointment. There must be a clear evidential foundation showing conduct that makes it unconscionable for the registered owner to insist on strict legal title. The court must therefore identify payment, possession, reliance, developments, knowledge and acquiescence, or other circumstances from which an equitable interest can properly arise. 9. The evidence before the Court shows that the appellant paid the agreed price. He entered possession of a defined portion. He constructed a home and made developments. He remained in occupation for many years. The respondent did not satisfactorily explain why those acts were permitted if there had been no sale. In those circumstances, it would be unconscionable to permit the respondent to retain the legal title free of the appellant’s equitable interest. 10. I therefore find that the absence of Land Control Board consent does not defeat the appellant’s claim. It prevents the enforcement of the transaction merely as an ordinary contract for sale, but it does not prevent the court from determining whether the respondent holds the disputed portion subject to an equitable obligation arising from the parties’ conduct. **H. WHETHER A CONSTRUCTIVE TRUST AROSE** 1. A constructive trust is not dependent upon the express intention of the parties to create a trust. It is imposed by law where justice and good conscience require it. It arises where, because of the conduct of the parties, it would be unconscionable for a person holding legal title to deny another person’s beneficial interest in the property. 2. Section 28 of the Land Registration Act recognises overriding interests, including trusts. Registration of land in the name of one person does not necessarily extinguish a beneficial interest arising under a constructive or other trust. In ***Kanyi v Muthiora* [1984] KLR 712**, the Court of Appeal affirmed that registration under the land registration regime does not free a registered proprietor from trust obligations. 3. The Supreme Court has also recognised the equitable role of constructive trust. In ***Shah & 7 Others v Mombasa Bricks & Tiles Ltd & 5 Others* [2023] KESC 106 (KLR)**, the Court explained that a constructive trust may arise by operation of law in order to prevent unjust enrichment and unconscionable reliance on strict legal title. 4. The evidence in this matter satisfies the threshold for intervention in equity. The appellant proved a sale transaction. He proved payment of the agreed consideration. He entered possession of an identified portion and developed it for many years. The respondent, though contesting the transaction, did not provide a satisfactory explanation for the appellant’s long and open occupation, nor did he demonstrate any prompt action taken to challenge the appellant’s possession or developments. 5. The appellant’s occupation and developments were acts of detrimental reliance. Having paid the agreed consideration and taken possession, he altered his position on the faith of the transaction. He established a home and made improvements. The respondent could not, after allowing that state of affairs to subsist for many years, invoke the absence of Land Control Board consent and legal title as a means of retaining both the land and the benefit of the transaction. 6. The facts therefore disclose more than an unenforceable agreement for sale. They disclose a completed course of conduct that created an equitable obligation. Justice requires the respondent to hold the disputed portion subject to a constructive trust in favour of the appellant. 7. I accordingly find that the learned trial magistrate erred in dismissing the appellant’s claim. The appellant established, on a balance of probabilities, that a constructive trust arose in his favour over the portion measuring approximately 0.03 hectares comprised in land parcel number ISUKHA/SHIRERE/7916, being the portion traceable to the former parcel number ISUKHA/SHIRERE/7860. **I. RELIEFS AND DISPOSITION** 1. The appellant sought a declaration of constructive trust and an order compelling transfer of the disputed portion. The evidence identifies the portion as measuring approximately 0.03 hectares. The evidence also shows that the portion had been measured and identified on the ground at the time of the transaction. 2. The appropriate remedy is therefore to declare the appellant’s beneficial interest and direct the respondent to facilitate transfer of the identified portion, subject to the necessary survey, subdivision, registration and statutory procedures. The orders must not be understood as dispensing with the requirements of land registration, survey, planning or any other applicable law. They are intended to give effect to the equitable interest established by the appellant. 3. In the result, the appeal succeeds. The judgment and decree of the Senior Resident Magistrate in Kakamega MCELC No. E185 of 2023 delivered on 20th December 2024 are hereby set aside. 4. In substitution thereof, judgment is entered for the appellant against the respondent in the following terms: 5. A declaration is hereby issued that the respondent holds, subject to a constructive trust in favour of the appellant, a portion measuring approximately **0.03 hectares** comprised in land parcel number **ISUKHA/SHIRERE/7916**, being a portion traceable to the former parcel number **ISUKHA/SHIRERE/7860**. 6. The respondent shall, within ninety (90) days from the date of this judgment, execute all documents necessary to procure the survey, subdivision, transfer and registration of the said portion in favour of the appellant, subject to compliance with all applicable statutory and administrative requirements. 7. In default of compliance by the respondent within the stated period, the Deputy Registrar of this Court shall be at liberty to execute all documents necessary to give effect to this judgment on behalf of the respondent. 8. The Land Registrar, Kakamega, and the County Surveyor, Kakamega, shall facilitate the implementation of this judgment in accordance with the applicable law, upon presentation of the requisite documents and compliance with the necessary statutory requirements. 9. The appellant shall have the costs of the suit before the subordinate court and the costs of this appeal. It is so ordered. DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT VIHIGA THIS 8TH DAY OF JULY 2026. **P. MUSYIMI** **JUDGE** **In the presence of:** Kevin: Court Assistant No Appearance for Applicant M/s Phoebe Munihu Adv for the Respondent