https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3141

Masuti v Ndiwa (Environment and Land Appeal E020 of 2024) [2026] KEELC 3141 (KLR) (18 May 2026) (Judgment) Neutral citation: [2026] KEELC 3141 (KLR) Republic of Kenya In the Environment and Land Court at Bungoma Environment and Land Appeal E020 of 2024 AK Bor, J May 18, 2026 Between Eliud Masuti Plaintiff and William Ndiwa Defendant Judgment 1.Aggrieved by the judgment of the Learned Magistrate delivered on 17/4/2024 in Sirisia SPM ELC Case No. E007 of 2018, the Appellant who was the defendant in that case lodged this appeal. The grounds of appeal are that the trial court erred when it failed to find that by virtue of the sale agreement between the Appellant and the Respondent entered into over the land known as North Malakisi/North Wamono/47, a constructive trust existed and the Land Control Act was inapplicable. The Appellant faulted the Learned Magistrate for failing to apply the principle of equity enshrined in Article 10 of the Constitution and the doctrine of constructive trust and proprietary estoppel, which would have enabled the court reach a conclusion that supersedes the harsh provisions of the Land Act. 2.The trial court was also faulted for failing to find that the Appellant had proved its counterclaim while the Respondent failed to prove his case. The Appellant sought to have the suit before the trial court dismissed and his counterclaim allowed. Further, he sought to have the Respondent ordered to transfer the suit land to his name as well as the costs of the suit and of the appeal. 3.The appeal was canvassed through written submissions. The Appellant submitted that there was no doubt that a sale agreement existed between the Appellant and the Respondent. He argued that the sale agreement satisfied the conditions for a valid sale agreement. He faulted the Learned Magistrate for relying on Section 6 of the Land Control Act while ignoring Article 10 of the Constitution, which elevates equity and justice as binding principles. The Appellant argued that having fully paid the purchase price and having taken possession of parcel no. 47, a constructive trust was created and that the Learned Magistrate should not have dismissed the counterclaim. The Appellant relied on Macharia Mwangi Maina and 87 others v Davidson Mwangi Kagiri [2014] eKLR on the concept of constructive trust. He relied on Willy Kimutai Kitilit v Michael Kibet (2019) eKLR where the court stated that equity was one of the national values under Article 10 of the Constitution, which binds the court when interpreting the law. The other ground taken up by the Appellant is that the Respondent’s suit was time barred since he obtained title over parcel no. 47 in 1979 and filed suit in 2018 yet the Appellant took possession of the land in 1976. 4.The Respondent submitted that a sale agreement must conform to the provisions of the Land Control Act. The Respondent pointed out that the Chairman and the Secretary did not sign the agreement. The Respondent submitted that the Learned Magistrate rightfully determined the case based on Section 6 of the Land Control Act. 5.The issue for determination is whether the appeal has merit and should be allowed. The suit was commenced through the plaint dated 15/5/2017, in which the Respondent pleaded that he had his land known as N. Malakisi/N. Wamono/47 measuring 1.8 hectares (ha) and his father’s land under succession known as N. Malakisi/N. Wamono/38 measuring 10.4 ha. He averred that he was the administrator of his father’s estate after he was given the letter by the Chief dated 4/12/2013. He sought to have the Appellant evicted from the two parcels of land. He pleaded that the Appellant’s father was Jackson Masuti while his mother was Truphena and that the Appellant’s grandfather, Ndiwa Masuti gave Jackson Masuti his own land separate from parcel no. 38 and that parcel no. 38 belonged to Ernest Ndiwa and the Respondent. The Respondent sought to have the Appellant evicted from parcel numbers 38 and 47. 6.In his defence dated 21/6/2017, the Appellant averred that he had occupied parcel no. 47 since 1976 when he purchased 2 acres from the Respondent and exchanged 2 acres with him in 2006. He added that parcel no. 38 was still registered in the name of Ndiwa Masuti and that the Respondent had a share in that land after exchanging his 2 acres in parcel no. 47 with the Appellant’s share in parcel no. 38. He pointed out that the beneficiaries of the late Ndiwa Masuti were yet to file a succession cause. 7.The Appellant pleaded that the Respondent had his own land parcel no. 50 while Ernest Ndhiwa had parcel no. 49. In his counterclaim, the Appellant averred that the occupation by the Respondent of part of parcel no. 47 was unlawful and was impeding him and his family from enjoying the use and rights of that land. He explained that he purchased 2 acres in parcel no. 47 from the Respondent and exchanged his 2 acres in parcel no. 38 with the Respondent who gave him his 2 acres in parcel no. 47. He pleaded that he had occupied parcel no. 47 since 1976 and that the Respondent occupied a small section of that parcel where he had built his house and had continuously promised that he would move out of the Appellant’s land. The Appellant sought a permanent injunction to restrain the Respondent from dealing with parcel no. 47 or any part of it. He also sought an order of specific performance to compel the Respondent to sign the transfer forms to enable the Appellant get his title deed. 8.The case was heard on 1/9/2021. The Respondent gave evidence and told the court that he was the legal administrator of his father Ndiwa Masuti on his parcel of land no. 38. That when his father died, his family chose him as the administrator of the estate. He stated that the defendant’s mother and father had a different parcel of land and that he owned parcel no. 47. He told the court the Appellant was his nephew, in that he was the son of his late brother Jackson Masuti. He stated that his father gave Jackson his land. He did not know the number but maintained that Jackson moved to another parcel of land with his family. That when Jackson denied that the Appellant was his son, the Appellant stayed at their home with his grandmother. He stated that the Appellant was shown his own land where he planted beans and built a house. 9.He told the court that he stayed on parcel no. 38 and that he bought land from his father Adam. He explained that the Appellant was given land by the Respondent’s father which is where he needed to go. He claimed that the Appellant had taken the whole of parcel no. 47 and a ¼ of parcel no. 38. He denied selling land to the Appellant and sought the court’s assistance in evicting the Appellant from parcel numbers 47 and 38. He did not have the documents for parcel no. 38 but maintained that he co-owned it with his brother Ernest Ndiwa. He confirmed that the Appellant had houses on parcel no. 47 and 38 and that parcel no. 38 was near parcel no. 47. 10.On cross examination, he stated that his father had 3 wives and that he gave land to his children. He was given parcel no. 38 with his brother Ernest while Jackson was given land across the river which number he did not know. His late father had parcel no. 47 and 38. He claimed that he bought parcel no. 47 from his uncle Adam but did not have the sale agreement to prove the purchase. He told the court the Appellant had stayed on parcel no. 47 for approximately 8 years. He told the court that he paid the Appellant’s school fees and even circumcised him at their home. He claimed that the Appellant interfered with the boundary and encroached onto parcel no. 47. 11.He told the court that the Appellant had stayed on parcel no. 38 since he was young and that the land that the Appellant was given was far from where the Respondent stayed. He claimed that he got a grant to file the suit on behalf of his father. He told the court that he was seeing the sale agreement dated 10/4/2003 which had his name for the first time. He conceded that parcel no. 50 was his given to him by his father and his brother Ernest owned parcel no. 49. He told the court his children stayed on parcel no. 38. 12.The Respondent called Zaituni Cheboi Masuti to give evidence. She told the court the Respondent was her son and the Appellant was her grandchild. They sold parcel no. 47 to the Respondent in 1973 and moved to Uganda. He stated that William was the son to the brother of Adam Masuti, her father in law. Then she stated that Williams’s father was a brother to her husband and that William’s father was a brother to Eliud’s father. This information is contradictory in terms of the family relationships. 13.The Appellant testified and told the trial court that in 1972 his grandfather gave him a parcel of land measuring 4 acres that was to be excised from parcel no. 38. At the time parcel numbers 38 and 47 had not been sub divided and was one big parcel. In 1976, the Respondent was also given 4 acres. In 2004, the Respondent approached him to exchange the parcels of land and they agreed that the Respondent would take 4 acres in parcel no. 38 and he was to take the Respondent’s 4 acres in parcel no. 47. They entered into an agreement for the exchange of the land. 14.In 2006, he purchased 2 acres at the cost of Kshs. 60,000/= from the Respondent in parcel 47 making him the sole owner of parcel no. 47. On completion of the purchase price, the Respondent gave him the original title for parcel no. 47 but he later took it together with the sale agreement claiming that he would process the title deed for him. The Respondent refused to release the documents to him. 15.During cross examination, he told the court that parcel no. 38 was registered in his grandfather’s name and that his grandfather died in 1978. He was residing in parcel no. 38, which his grandfather gave him and was also residing on parcel no. 47. He claimed that the Respondent had encroached on parcel no. 47. He stated that parcel no. 38 was yet to be subdivided and that his grandfather gave him a parcel in 1970. His grandfather gave his father parcel no. 57. He told the court that he was occupying both parcel numbers 38 and 47. 16.Samwel Kimboi Chemwok gave evidence. He told the court that the Appellant’s grandfather was his cousin. He stated that he was the clan chairman. He confirmed that the Appellant and the Respondent had been staying together in the homestead of Ndiwa Masuti. He knew that the Appellant was given land measuring 4 acres in parcel no. 38 where he had been staying. That in 2004, the Respondent approached the Appellant for exchange of their land and they agreed that the Respondent would take the Appellant’s 4 acres in parcel no. 38 while the Appellant was to take the Respondent’s 4 acres in parcel no. 47. They involved the clan members when the exchange of the land was done. Later, the Respondent started arguing with the Appellant that he did not want to share the same compound with him. He told the court that when he took the matter to the District level, the Respondent requested the clan to allow him to stay on the land where he had been staying but his family was to move out. He told the court that the Respondent had placed beacons on the land. 17.Peter Masuti gave evidence. The Appellant is his brother. He stated that his grandfather gave the Appellant 4 acres in parcel no. 38 where he had been staying. The Respondent approached him to exchange the land in 2004. They entered into an agreement dated 10/4/2004. They called a clan meeting to witness the land exchange. 18.After hearing the case, the Learned Magistrate summarised the issues for determination as whether the Appellant entered into a sale agreement with the plaintiff for the sale of 2 acres in parcel no. 47 and whether the Appellant exchanged 2 acres of parcel no. 47 for 2 acres in parcel no. 38. 19.After evaluating the evidence, the Learned Magistrate found that both parties could not institute any claim over parcel no. 38 without letters of administration. On that basis, the assertion by the Appellant that he exchanged two acres out of parcel no. 38 with the Respondent could not succeed. The trial court found that the exchange agreement was an illegal contract because parcel no. 38 belonged to a dead person. The Learned Magistrate relied on Sections 55 and 82 of the Law of Succession Act. 20.Regarding parcel no. 47, the trial court found that it was necessary for the Appellant to obtain land control board consent within 6 months as required by Section 6 of the Land Control Act. The trial court granted the orders for the eviction of the Appellant from parcel no. 47. 21.It is not in dispute that the Appellant grew up on parcel number 38, which belonged to his grandfather. The Appellant’s averment that he was given 4 acres of land by his grandfather was corroborated by Samwel Kimboi Chemwok, the clan Chairman. The sale agreement dated 10/4/2003 is evidence that the Respondent sold 2 acres out of parcel number 47 at Kshs. 60,000/= and was paid the full consideration as captured in that agreement. The register for this parcel of land was opened on 15/1/1979 and a title was issued to the Respondent in 1995. The land measures 1.8 hectares. 22.The Appellant’s main contention is that he exchanged land with the Respondent in 2004 and that after purchasing another 2 acres from him in 2006, he became the owner of the whole parcel no. 47. The Respondent’s argument that parcel number 38 belonged to him and his brother Ernest has no basis in light of the fact that he was also allocated parcel no. 50 by his father and Ernest got parcel no. 49. 23.Ndiwa Masuti died on 2/11/1978 but was registered as the owner of parcel number 38 posthumously on 1.1.5.1979. The land measures 10.4 hectares. The Respondent averred that he was the administrator of his father’s estate after he was given the letter by the Chief dated 4/12/2013. He stated that when his father died, his family chose him as the administrator of the estate. As the trial court rightly determined, no administrator has been appointed for the estate of the late Ndiwa Masuti. 24.It is not clear why the Respondent has never taken out letters of administration for his estate almost 50 years after he died. The confirmed letters of administration would set out the mode of distribution of the assets of the deceased person among his beneficiaries. What is apparent is that notwithstanding the fact that no administrator has been appointed by the court for the estate of Ndiwa Masuti, parcel number 38 has been put into use by both parties. It emerged from the evidence that the Respondent’s children live on that land. 25.The Appellant proved on a balance of probabilities that he exchanged his share of the land in parcel no. 38 with the Respondent and also purchased 2 acres from him in 2006. The Learned Magistrate erred when he found that the purchase of 2 acres in parcel 47 by the Appellant was void for lack of land control board consent. The Respondent would be unjustly enriched if he were to keep both the consideration and parcel number 47 after selling 2 acres of that land to the Appellant. A constructive trust arises in favour of the Appellant. 26.The appeal is allowed. The Respondent’s claim in Sirisia SPM ELC Case No. 7 of 2018 is dismissed and the Appellant’s counterclaim is allowed. The Respondent is directed to transfer North Malakisi/North Wamono/47 to the Appellant forthwith. The Appellant is awarded the costs of the appeal and the suit before the Magistrates’ court. DELIVERED VIRTUALLY AT BUNGOMA THIS 18TH DAY OF MAY 2026.K. BORJUDGEIn the Presence of:-Mr. K. Were holding brief for Mr. O. Bwonchiri for the AppellantMr. William Ndiwa- the RespondentCourt Assistant –Josephat Bett