Materian & another v Kisoso & 3 others (Environment and Land Petition E014 of 2025) [2026] KEELC 5026 (KLR) (30 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAJIADO** **ELC PETITION NO. E014 OF 2025** **IN THE MATTER OF: VIOLATION AND INFRINGEMENT OF CONSTITUTIONAL RIGHTS AND FUNDAMENTAL FREEDOMS** **AND** **IN THE MATTER OF: THE CONSITUTION OF KENYA ART 1(1), (2), (3), (4) (b) ART 2(1) ART 3 (1), ART 10 (1) (2), ART 22 (2) (a), ART 40, ART 47 (2) (3) ART 159 (2) (d) AND ART 162 (2) (b), ART 258 (2) (a).** **AND** **IN THE MATTER OF: ARTICLE 40 (3) AND 43 OF THE CONSTITUTION OF KENYA ON DEPRIVIATION OF PROPERTY** **AND** **IN THE MATTER OF: LAND REGISTRATION ACT** **BETWEEN** **NAIKAPA JULIUS MATERIAN..................................................................1ST PETITIONER** **NAISENYA MATERIAN..............................................................................2ND PETITIONER** **VERSUS** **JULIUS MATERIAN KISOSO...................................................................1ST RESPONDENT** **WISHLIFE INVESTMENTS LIMITED .................................................2ND RESPONDENT** **THE COUNTY LAND REGISTRAR, KAJIADO COUNTY.................3RD RESPONDENT** **THE ATTORNEY GENERAL...................................................................4TH RESPONDENT** **JUDGEMENT** **Introduction** 1. The proceedings before this Court stem from a Constitutional Petition dated 30th September 2025, instituted by the 1st and 2nd Petitioners, Naikapa Julius Materian and Naisenya Materian Kisoso. The substrate of the Petition concerns the ownership, transaction history, and registration of title in respect of the land parcel known as **L.R. No. KAJIADO/KITENGELA/5477** (hereinafter referred to as the "suit property"). 2. In their main Petition dated 30th September 2025, the Petitioners aver that they are the legal wives of the 1st Respondent and that the suit property constitutes their ancestral and matrimonial home. They state that their family has continuously resided on, cultivated, and developed the suit property over the years. 3. The Petitioners' core grievance is that the 1st Respondent unlawfully sold and transferred the suit property to the 2nd Respondent without obtaining their mandatory spousal consent, in contravention of Section 28 of the Land Registration Act. They further contend that the 3rd Respondent improperly facilitated and registered the transfer of interest to the 2nd Respondent in the absence of such consent, thereby violating their right to fair administrative action protected under Article 47 of the Constitution of Kenya. 4. Consequently, the Petitioners approach this Court seeking the following specific prayers as set out in their Petition: **(a)** A declaration that the 1st Defendant [Respondent] held L.R. No. KAJIADO/KITENGELA/5477 in trust for the Petitioners and their children, being ancestral and matrimonial property. **(b)** A declaration that any purported dealings by the 1st Defendant [Respondent] and the 2nd Defendant [Respondent] over the subject matter, L.R. No. KAJIADO/KITENGELA/5477, were unlawful. **(c)** A permanent injunction restraining the 1st and 2nd Respondents by themselves, their servants, and/or agents from trespassing onto, making use of, staying in, selling, disposing of, transferring, or in any manner whatsoever interfering with, entering, taking possession of, or evicting the Petitioners from the property title L.R. No. KAJIADO/KITENGELA/5477. **(d)** An Order of Mandamus to compel the Land Registrar to issue a new title deed to and in the names of the 1st Respondent and the Petitioners. **(e)** An Order for General Damages and that the costs of this Petition be provided for. **(f)** Costs and interest. 1. The Petition is opposed by the 2nd Respondent, Wishlife Investment Limited, through its Response dated 3rd November 2025. The 2nd Respondent asserts that it is the bona fide registered proprietor of the suit property, having lawfully purchased the parcel from the 1st Respondent, with the official transfer of title registered on 8th July 1994. 2. In opposition to the Petitioners' locus standi and substantive claims, the 2nd Respondent contends that the suit property was inherited by the 1st Respondent prior to his alleged marriage to the Petitioners in 2005, and therefore does not form part of any matrimonial estate requiring spousal consent. 3. Furthermore, the 2nd Respondent submits that the present Petition is an abuse of court process intended to re-litigate settled matters and impede a valid decree. The 2nd Respondent relies on prior judicial proceedings, specifically **Kajiado ELC No. 241 of 2017** and the subsequent **Nairobi Civil Appeal No. E365 of 2023**, contending that ownership of the suit property was conclusively adjudicated and determined in its favor. 4. In response to the 2nd Respondent's assertions, the Petitioners filed a Further Affidavit dated 19th January 2024. The Petitioners clarify that they were married to the 1st Respondent under Maasai customary law much earlier than claimed; in 1983 and 1985 respectively, and have continuously lived on and farmed the suit property since that time. They depose that they were completely unaware of the disputed sale transaction, as well as the prior legal proceedings cited by the 2nd Respondent, and only became aware of the threat to their occupation upon being served with eviction notices. 5. The instant petition was canvassed by way of written submissions, the submissions of which have been duly considered in the writing of this judgement. **Analysis of Submissions** **Petitioners’ Submissions** 1. The Petitioners’ seek the protection and enforcement of their constitutional rights over the suit property, known as L.R. No. KAJIADO/KITENGELA/5477, asserting that the property constitutes matrimonial property which was unlawfully alienated and transferred to the 2nd Respondent without their spousal consent. 2. The thrust of the Petitioners' argument rests on the classification of the suit land as matrimonial property. They submit that they were married to the 1st Respondent under Maasai customary law in 1983 and 1985, respectively, and have continually resided upon, farmed, and raised their family on the suit land. The Petitioners aver that the land was given to the 1st Respondent upon marriage pursuant to cultural customs, and that they subsequently acquired beneficial equitable interests through both monetary and non-monetary contributions, such as domestic work, child care, and farm management, as envisioned under Sections 2 and 6 of the Matrimonial Property Act, 2013. In buttressing this point, they rely on the authorities of ***Isack M'Inanga Kiebia v Isaaya Theuri M'Lintari & another [2018] eKLR, TKM v SMW [2020] eKLR***, and the dissenting opinion of J.M. Ngugi, JA in ***Resma Commercial Agencies v Joel Karumba Ngattah & another*** to argue that the informal, non-monetary contributions of women in rural setups should not be disqualified for lack of documentary proof. They further contend that even where land is initially acquired by custom or inheritance, subsequent contributions during the subsistence of a marriage confer beneficial spousal rights. 3. Consequently, the Petitioners submit that any transaction alienating the property without written spousal consent is a direct violation of Section 12(1) of the Matrimonial Property Act and Section 93(3) of the Land Registration Act, 2012. Citing ***Echaria v Echaria [2007] eKLR and MNK v POM [2018] eKLR,*** they argue that their overriding spousal interests, protected under Section 28(b) of the Land Registration Act, render the purported sale to the 2nd Respondent null and void ab initio. Furthermore, they fault the 3rd Respondent, the Land Registrar, for effecting the transfer without verifying spousal consent, arguing that this omission constituted a breach of Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act, as guided by the holding in ***Republic v Land Registrar, Kajiado & Another Ex Parte Karanja [2019] eKLR***. 4. Addressing the issue of *res judicata*, the Petitioners submit that the prior proceedings in Kajiado ELC No. 241 of 2017 and Civil Appeal No. E365 of 2023 were strictly confined to the question of whether the 1st Respondent had proved fraud concerning missing titles and green cards. They maintain that the specific issues of spousal beneficial ownership, overriding interests, and lack of spousal consent were never raised or determined by those courts, meaning the present petition is not barred by previous litigation. Ultimately, the Petitioners assert that their constitutional rights under Articles 10, 40, 45(3), and 47 have been violated, frustrating their legitimate expectation that their property rights would be protected, and they therefore pray for declarations of trust, nullification of the transfer, injunctive orders, an order of mandamus, and damages. **2nd Respondent’s Submissions** 1. In response, the 2nd Respondent relies on its written submissions dated 24th April 2026, opposing the Petition on several grounds. The 2nd Respondent maintains that it is the lawful and registered owner of the suit property and characterizes the present suit as a collusive, time-barred attempt by the Petitioners and the 1st Respondent to re-litigate matters that have already been settled by the superior courts. 2. At the core of the 2nd Respondent’s defense is the assertion that the suit land does not constitute matrimonial property. It is submitted that the 1st Respondent inherited the land from his father prior to the alleged customary marriages, and therefore, it is expressly excluded from the ambit of matrimonial property by Section 5 of the Matrimonial Property Act. Relying on the Supreme Court decision in ***JOO v MBO [2023] KESC 4 (KLR)*** and the High Court in ***LAO v WHO [2025] KEHC 3686 (KLR)***, the 2nd Respondent argues that marriage does not automatically convert separate, inherited property into co-owned matrimonial property. Further citing the Court of Appeal in ***Resma Commercial Agencies v Ngattah [2025] KECA 2214 (KLR),*** it is contended that mere occupation, raising children, or domestic use does not create proprietary rights in undeveloped, inherited agricultural land. Consequently, the 2nd Respondent posits that spousal consent under Section 12 of the Matrimonial Property Act was neither applicable nor required for the disposition. 3. The 2nd Respondent also raises a robust preliminary defense based on the statute of limitations. Pointing out that the disputed land transfer occurred in 1994—over 31 years prior to the filing of the petition—the 2nd Respondent argues that the action is fatally time-barred under Section 7 of the Limitation of Actions Act, which caps actions for the recovery of land at twelve years. Relying on ***CWM v JPM [2017] eKLR, Mehta v Shah [1965] E.A. 321, and Iga v Makerere University [1972] EA***, it is submitted that this statutory limitation period extinguishes the court's jurisdiction to grant the requested remedies in claims concerning land and matrimonial property rights. 4. Furthermore, the 2nd Respondent invokes the doctrine of *res judicata*, highlighting that the ownership and lawfulness of the 1994 transfer were comprehensively litigated on their merits in Kajiado ELC No. 241 of 2017 and subsequently affirmed in Nairobi Civil Appeal No. E365 of 2023. Guided by Section 7 of the Civil Procedure Act and the principles established in ***John Florence Maritime Services Ltd v Cabinet Secretary Transport [2021] KESC 39 (KLR)* and *KCB v Muiri Coffee Estate Ltd [2016] eKLR***, the 2nd Respondent submits that all mandatory conditions for *res judicata* are present. The 2nd Respondent adds that the introduction of the spousal consent argument at this juncture falls squarely under the doctrine of constructive *res judicata*, as it is an issue that ought to have been raised by the parties in the primary suit. 5. Finally, the 2nd Respondent submits that the petition is an abuse of the court process, engineered as a collusive stratagem to circumvent pending eviction proceedings in Kajiado MCCMISC/E086 of 2025 following the 1st Respondent's successive defeats and failed review applications. Regarding the prayer for mandamus, the 2nd Respondent relies on ***Republic v Land Registrar Makueni [2024] KEELC 13814 (KLR)* and *Pastoli v Kabale District Local Government [2008] 2 EA*** to argue that an order of mandamus cannot issue to negate or override a binding judgment of the Court of Appeal, especially where the Petitioners have established no clear legal right or breach of public legal duty by the Land Registrar. The 2nd Respondent accordingly prays that the Petition be dismissed in its entirety with costs. **Issues for Determination** 1. Having carefully considered the Constitutional Petition, the responses thereto, the affidavits on record and the respective written submissions together with the authorities cited, the Court is of the considered view that the following issues fall for determination: ***i. Whether the present Constitutional Petition is barred by the doctrine of res judicata in light of the previous proceedings in Kajiado ELC No. 241 of 2017 and Nairobi Civil Appeal No. E365 of 2023.*** ***ii. Whether the Petition is statute-barred under Section 7 of the Limitation of Actions Act, Cap. 22 Laws of Kenya.*** ***iii. Whether Land Parcel No. KAJIADO/KITENGELA/5477 constitutes matrimonial property and/or property held in trust for the Petitioners and their children.*** ***iv. Whether the Petitioners have established beneficial or overriding spousal interests over Land Parcel No. KAJIADO/KITENGELA/5477 capable of protection under the Constitution, the Matrimonial Property Act, 2013, and the Land Registration Act, 2012.*** ***v. Whether the transfer of Land Parcel No. KAJIADO/KITENGELA/5477 by the 1st Respondent to the 2nd Respondent without the Petitioners' alleged spousal consent was unlawful and in violation of the Petitioners' constitutional and statutory rights.*** ***vi. Whether the Petitioners are entitled to the declaratory, injunctive, prerogative, compensatory and other reliefs sought in the Petition, including costs.*** **Analysis and Determination** ***i. Whether the present Constitutional Petition is barred by the doctrine of res judicata in light of the previous proceedings in Kajiado ELC No. 241 of 2017 and Nairobi Civil Appeal No. E365 of 2023.*** 1. The 2nd Respondent has raised the doctrine of *res judicata* as a complete bar to the present Petition. Its contention is that the ownership of Land Parcel No. KAJIADO/KITENGELA/5477 was conclusively determined in **Kajiado ELC No. 241 of 2017**, a decision which was subsequently upheld by the Court of Appeal in **Nairobi Civil Appeal No. E365 of 2023**. It is therefore argued that the Petitioners are improperly seeking to reopen issues that have already attained finality through the guise of a constitutional petition. 2. The Petitioners, on the other hand, maintain that they were neither parties to the previous proceedings nor aware of the alleged sale and the ensuing litigation until eviction notices were served upon them. They further contend that the previous litigation was confined to allegations of fraud between the 1st Respondent and the 2nd Respondent and did not determine their alleged overriding spousal interests, the requirement of spousal consent, or the alleged violation of their constitutional rights under Articles 40 and 47 of the Constitution. 3. The doctrine of *res judicata* is statutorily embodied in **Section 7 of the Civil Procedure Act, Cap. 21**, which provides: ***"No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."*** 1. The Supreme Court has now settled the law regarding the applicability of the doctrine to constitutional litigation. In ***John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021)****,* the Supreme Court emphatically held that the doctrine of *res judicata* applies to constitutional petitions, subject only to exceptional circumstances. The Court stated: ***"We reaffirm our position as in the Muiri Coffee case that the doctrine of res judicata is based on the principle of finality which is a matter of public policy. The principle of finality is one of the pillars upon which our judicial system is founded and the doctrine of res judicata prevents a multiplicity of suits... and it ensures that litigation comes to an end."*** 1. The Supreme Court further held: ***"If we were to find that the doctrine does not apply to constitutional litigation, the doctrine may very well lose much of its legitimacy and validity."*** 1. The Court proceeded to restate the essential ingredients that must exist before the doctrine may be invoked: ***"For res judicata to be invoked in a civil matter the following elements must be demonstrated: (a) there is a former judgment or order which was final; (b) the judgment or order was on merit; (c) the judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and (d) there must be between the first and the second action identical parties, subject matter and cause of action."*** 1. The foregoing pronouncement accords with the long-established principle enunciated in ***Henderson v Henderson (1843) 3 Hare 100, 67 ER 313 (Court of Chancery)****,* where Wigram V-C stated: ***"...where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case..."*** 1. The doctrine therefore extends not merely to issues actually determined, but also to matters which properly belonged to the earlier litigation and which, exercising reasonable diligence, the parties ought to have raised. 2. Applying these settled principles to the present dispute, there is no controversy that Kajiado ELC No. 241 of 2017 culminated in a final judgment declaring the 2nd Respondent the lawful proprietor of the suit property. Equally, the evidence before this Court demonstrates that the judgment was upheld by the Court of Appeal in Nairobi Civil Appeal No. E365 of 2023. Consequently, the first three ingredients identified by the Supreme Court; namely the existence of a final judgment, rendered on the merits, by a court of competent jurisdiction, are undoubtedly satisfied. 3. The critical inquiry, however, is whether the present Petition involves identical parties litigating under the same title and whether the issues now raised were directly and substantially determined in the earlier proceedings. 4. From the pleadings before this Court, the earlier suit was instituted by the 1st Respondent challenging the legality of the transfer of the suit property on allegations of fraud. The present Petition, however, has been instituted by the Petitioners in their own capacities as alleged spouses of the 1st Respondent. Their claim is founded upon alleged beneficial and overriding spousal interests arising from marriage, occupation, contribution and the statutory requirement for spousal consent before disposition of matrimonial property. They further allege violations of Articles 40 and 47 of the Constitution arising from the registration of the transfer without recognition of those interests. The record presently before this Court does not demonstrate that the Petitioners were parties to Kajiado ELC No. 241 of 2017 or Nairobi Civil Appeal No. E365 of 2023. Neither has any material been placed before this Court demonstrating that the questions concerning the Petitioners' alleged overriding spousal interests, the necessity of spousal consent, or the alleged infringement of their constitutional rights were directly and substantially determined in those proceedings. 5. While the doctrine of constructive *res judicata* would ordinarily preclude matters that ought to have been raised in previous litigation, its application presupposes that the party against whom it is invoked had a fair opportunity to ventilate those issues in the earlier proceedings. The Petitioners have consistently maintained that they neither knew of the sale nor of the earlier proceedings until they were threatened with eviction. The Court cannot conclude, on the basis of the material before it, that they had such an opportunity. 6. Accordingly, although this Court fully recognizes the binding effect of the judgments rendered in Kajiado ELC No. 241 of 2017 and Nairobi Civil Appeal No. E365 of 2023 upon the matters actually determined therein, I am not persuaded that the present Petition is barred by the doctrine of *res judicata*. The Petition raises distinct questions concerning the Petitioners' alleged constitutional and statutory rights as spouses which, on the present record, have not been shown to have been conclusively adjudicated by the previous courts. 7. The Court therefore finds that the objection founded upon Section 7 of the Civil Procedure Act is without merit. The plea of *res judicata* is consequently rejected, and the Court shall proceed to determine the remaining issues on their substantive merits. **ii. *Whether the Petition is statute-barred under Section 7 of the Limitation of Actions Act, Cap. 22 Laws of Kenya.*** 1. The 2nd Respondent contends that the instant Petition is statute-barred under Section 7 of the Limitation of Actions Act, Cap. 22 Laws of Kenya. It is submitted that the impugned transfer of Land Parcel No. KAJIADO/KITENGELA/5477 was registered on 8th July 1994, whereas the present Petition was instituted on 30th September 2025, more than thirty years thereafter. Consequently, the 2nd Respondent argues that the Petitioners' claim, being one that seeks to challenge the transfer and recover proprietary rights over the suit property, is hopelessly out of time. 2. The Petitioners take a contrary position. They maintain that they were unaware of both the impugned transfer and the previous proceedings concerning the suit property until they were served with eviction notices. They further contend that the present proceedings are principally brought for the enforcement of their constitutional rights under Articles 40 and 47 of the Constitution, and are therefore not defeated merely because the impugned transaction occurred many years ago. 3. The point of departure is Section 7 of the Limitation of Actions Act, which provides: ***"An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person."*** 1. There is no dispute that the above provision governs ordinary civil actions for the recovery of land. However, the present proceedings are not instituted as an ordinary civil action for recovery of land. They are framed as a constitutional petition alleging violation of the Petitioners' fundamental rights and freedoms under the Constitution. 2. The question whether constitutional petitions are subject to statutory limitation periods has received judicial consideration. In ***Peter Ngari Kagume & 7 Others v Attorney General [2009] eKLR (Court of Appeal at Nairobi, Civil Appeal No. 128 of 2006)****,* the Court of Appeal held that although the Constitution did not prescribe a limitation period for the enforcement of fundamental rights, a petitioner who approaches the Court after considerable delay bears the burden of explaining such delay. The Court observed that unexplained inordinate delay may disentitle a litigant to relief depending on the circumstances of the case. 3. The Supreme Court similarly addressed the interplay between constitutional litigation and procedural doctrines in ***John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others (Petition No. 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021)****.* While the Supreme Court affirmed that constitutional litigation is not immune from established legal doctrines such as *res judicata*, it equally emphasized that constitutional disputes must be determined in accordance with their own factual and legal context. The Court did not hold that Section 7 of the Limitation of Actions Act automatically extinguishes every constitutional petition merely because it concerns land. 4. The jurisprudence emerging from the superior courts therefore demonstrates that there is no rigid statutory limitation period governing constitutional petitions. Rather, the Court is required to examine whether the delay has been satisfactorily explained and whether the circumstances of the case justify the exercise of the Court's constitutional jurisdiction. 5. In the present matter, the Petitioners have consistently maintained that they were unaware of the impugned transfer, were not parties to the previous litigation concerning the suit property, and only became aware of the alleged infringement upon receipt of eviction notices. Whether those assertions are ultimately proved by evidence is a matter falling for determination under the substantive issues. Nevertheless, they constitute an explanation for the delay. 6. More importantly, the Court is alive to the distinction between a finding that a constitutional petition is competent and a finding that it is meritorious. The mere fact that the Petition survives a limitation challenge does not translate into proof of the alleged constitutional violations. The Petitioners must still establish, on a balance of probabilities, that they possessed legally recognizable rights over the suit property and that those rights were infringed by the Respondents. Those questions fall to be determined under the subsequent issues. 7. Accordingly, I find that the present proceedings, being a constitutional petition alleging infringement of fundamental rights and freedoms, are **not rendered incompetent solely by reason of Section 7 of the Limitation of Actions Act**. The plea of limitation therefore fails. **iii. *Whether Land Parcel No. KAJIADO/KITENGELA/5477 constitutes matrimonial property and/or property held in trust for the Petitioners and their children.*** 1. The third issue for determination is whether Land Parcel No. KAJIADO/KITENGELA/5477 constitutes matrimonial property and/or property held in trust for the Petitioners and their children. 2. The Petitioners contend that they are wives of the 1st Respondent and that they have occupied the suit property for several years together with their children. They assert that the suit property constituted their matrimonial home and that, by virtue of their occupation and contribution to the family, they acquired beneficial interests capable of protection under the Constitution, the Matrimonial Property Act, 2013, and the Land Registration Act, 2012. It is further their case that the 1st Respondent held the property in trust for the family and could not lawfully alienate it without their participation. 3. The Respondents dispute those assertions. They maintain that the suit property was inherited by the 1st Respondent long before the alleged marriages to the Petitioners and therefore did not constitute matrimonial property within the meaning of the Matrimonial Property Act. They further contend that the Petitioners have neither pleaded nor proved any contribution towards the acquisition or improvement of the property, nor established any legal or factual basis upon which a trust could be inferred. 4. The determination of this issue calls for an examination of the constitutional and statutory framework governing matrimonial property. 5. Article 45(3) of the Constitution provides: ***"Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage."*** 1. The provision guarantees equality of spouses but does not automatically convert every asset owned by one spouse into matrimonial property. The nature and extent of proprietary rights are regulated by statute. 2. Section 6(1) of the Matrimonial Property Act, No. 49 of 2013 provides: ***"For the purposes of this Act, matrimonial property means—*** ***(a) the matrimonial home or homes;*** ***(b) household goods and effects in the matrimonial home or homes; or*** ***(c) any other immovable and movable property jointly owned and acquired during the subsistence of the marriage."*** 1. Further, Section 6(3) expressly provides: ***"Despite subsection (1), trust property, including property held in trust under customary law, does not form part of matrimonial property."*** 1. The effect of the foregoing provisions is that property does not become matrimonial property merely because spouses reside upon it. Rather, the Court must determine whether the property falls within the statutory definition and whether the evidence establishes acquisition during the subsistence of the marriage or such proprietary interest as is recognized by law. 2. From the evidence on record, it is common ground that the suit property did not originate from any joint acquisition by the Petitioners and the 1st Respondent. Instead, the material before the Court demonstrates that the property devolved upon the 1st Respondent by way of inheritance long before the alleged marriages to the Petitioners. The Petitioners have not controverted that fact by documentary evidence. 3. The Court is unable to accept the Petitioners' submission that mere occupation of the land transformed it into matrimonial property. Occupation, without more, does not satisfy the statutory requirements under Section 6 of the Matrimonial Property Act. The Act draws a clear distinction between occupation of property and acquisition of proprietary rights therein. To hold otherwise would expand the statutory definition beyond the intention of Parliament. 4. Equally, no evidential basis has been laid for the existence of a trust. A trust, whether express, resulting or constructive, is not presumed merely because parties are members of the same family. The burden rests upon the party asserting the existence of a trust to plead with particularity the facts giving rise to such trust and thereafter prove those facts by credible evidence. 5. In ***Juletabi African Adventure Limited & another v Christopher Michael Lockley [2017] eKLR***, the Court of Appeal reaffirmed that a trust is a question of fact which must be specifically pleaded and strictly proved by evidence. Mere assertions, however strongly made, cannot suffice. 6. Similarly, the Supreme Court in ***Isack M'Inanga Kiebia v Isaaya Theuri M'Lintari & another, Petition No. 10 of 2015; [2018] eKLR****,* while discussing customary trusts, held that the existence of a trust is not automatic and must be established by evidence satisfying the applicable legal principles. 7. Turning to the present Petition, the Petitioners have not demonstrated that the suit property was acquired during the subsistence of the alleged marriages, that it was jointly owned, or that they made any legally cognizable contribution giving rise to a proprietary interest under the Matrimonial Property Act. Nor have they established the factual ingredients necessary for the creation or inference of either a customary, resulting or constructive trust. 8. The Court is further persuaded that the mere existence of a matrimonial relationship does not divest a registered proprietor of proprietary rights acquired independently of the marriage. To hold that inherited property automatically becomes matrimonial property solely because spouses subsequently reside thereon would be contrary to both the text and purpose of the Matrimonial Property Act. 9. Having carefully considered the pleadings, the evidence and the applicable law, I find that the Petitioners have failed to discharge the burden of proving that Land Parcel No. KAJIADO/KITENGELA/5477 constituted matrimonial property within the meaning of Section 6 of the Matrimonial Property Act, 2013. Likewise, they have failed to establish that the 1st Respondent held the property in trust for them or for their children. 10. Accordingly, this Court finds and holds that **Land Parcel No. KAJIADO/KITENGELA/5477 was not matrimonial property and was not property held in trust for the Petitioners and their children.** **iv. *Whether the Petitioners have established beneficial or overriding spousal interests over Land Parcel No. KAJIADO/KITENGELA/5477 capable of protection under the Constitution, the Matrimonial Property Act, 2013, and the Land Registration Act, 2012.*** 1. The Petitioners contend that by virtue of their status as spouses of the 1st Respondent and their occupation of the suit property together with their children, they acquired beneficial and overriding interests in the property. They argue that such interests were binding upon the 2nd Respondent notwithstanding the latter's registration as proprietor and that the transfer of the suit property without their participation was contrary to law. 2. The 2nd Respondent disputes the existence of any such interests. They submit that the Petitioners have neither demonstrated that the suit property constituted matrimonial property nor proved any legal or equitable interest capable of overriding the rights of the registered proprietor. It is further contended that the Petitioners' occupation of the land, if any, did not of itself create proprietary rights recognizable under the law. 3. Having already found under the preceding issue that the suit property does not constitute matrimonial property and that it was not held in trust for the Petitioners or their children, it follows that the Petitioners can only succeed under this issue if they demonstrate the existence of an independent beneficial or overriding interest recognized by law. 4. The constitutional protection of property under Article 40 of the Constitution extends only to legally recognizable interests in property. Article 40 does not create proprietary rights where none exist in law; rather, it protects rights that have been lawfully acquired and are capable of legal enforcement. 5. The Land Registration Act, 2012 similarly recognizes that certain interests may subsist and bind registered land without being noted on the register. Section 28 provides that unless the contrary is expressed in the register, all registered land shall be subject to the overriding interests specified therein, including, under paragraph (a): ***"spousal rights over matrimonial property."*** 1. It is significant that the statute specifically refers to **"spousal rights over matrimonial property."** The provision does not create overriding interests over every parcel of land owned by one spouse. The overriding interest contemplated by Section 28(a) is predicated upon the existence of matrimonial property. Where the property in question does not fall within the statutory definition of matrimonial property, the protection afforded under Section 28(a) is unavailable. 2. This interpretation accords with the decision of the Court of Appeal in ***Amina Abdalla Ahmed v Mariam Sheikh Ahmed & 2 others [2019] eKLR***, where the Court held that spousal rights recognized under Section 28(a) of the Land Registration Act are interests arising in respect of matrimonial property and do not operate to defeat rights lawfully acquired where no such matrimonial interest has been established. 3. Similarly, in ***Isack M'Inanga Kiebia v Isaaya Theuri M'Lintari & another, Supreme Court Petition No. 10 of 2015; [2018] eKLR***, the Supreme Court underscored that beneficial interests or trusts affecting registered land are not presumed but must be established by cogent evidence. The Court emphasized that the existence of such interests depends upon proof of the factual circumstances giving rise to them. 4. Applying the foregoing principles to the present case, the Petitioners have not demonstrated that they possessed any beneficial interest capable of protection under either the Constitution or statute. Beyond asserting that they occupied the suit property as spouses of the 1st Respondent, no evidence has been tendered to demonstrate contribution towards acquisition of the property, the existence of a trust, a joint proprietary arrangement, or any other equitable circumstance from which a beneficial interest could arise. 5. Equally, the Petitioners have not shown that the suit property was matrimonial property so as to bring it within the ambit of Section 28(a) of the Land Registration Act. As this Court has already found, the evidence establishes that the property was inherited by the 1st Respondent long before the alleged marriages and was not jointly acquired during the subsistence of those marriages. Consequently, the statutory foundation upon which an overriding spousal interest could arise is absent. 6. The Court is unable to accept the proposition that occupation alone creates an overriding interest in registered land. Such an interpretation would be inconsistent with both the Land Registration Act and the Matrimonial Property Act, each of which predicates spousal protection upon legally recognizable proprietary rights rather than mere physical possession. 7. The Petitioners also invoked Article 40 of the Constitution. However, constitutional protection cannot be extended to interests that have not first been established under the applicable legal framework. Since no beneficial or overriding interest has been proved, there exists no proprietary right capable of constitutional protection. 8. In the premises, I find that the Petitioners have failed to establish, on a balance of probabilities, that they possessed any beneficial or overriding spousal interest over Land Parcel No. KAJIADO/KITENGELA/5477 capable of protection under Article 40 of the Constitution, the Matrimonial Property Act, 2013, or Section 28(a) of the Land Registration Act, 2012. **v. *Whether the transfer of Land Parcel No. KAJIADO/KITENGELA/5477 by the 1st Respondent to the 2nd Respondent without the Petitioners' alleged spousal consent was unlawful and in violation of the Petitioners' constitutional and statutory rights.*** 1. The Petitioners contend that the transfer of Land Parcel No. KAJIADO/KITENGELA/5477 by the 1st Respondent to the 2nd Respondent was undertaken without their knowledge or consent, contrary to the provisions of the Land Registration Act, 2012, the Land Act, 2012 and the Matrimonial Property Act, 2013. They submit that, as spouses of the 1st Respondent, their consent was a mandatory prerequisite before any disposition of the suit property could lawfully be effected. Consequently, they urge the Court to declare the transfer null and void and to order the cancellation of the 2nd Respondent's title. 2. The Respondents dispute that contention. They submit that the suit property was neither matrimonial property nor subject to any overriding spousal interests. They further contend that the Petitioners possessed no proprietary rights necessitating their consent before the transfer and that the transfer was therefore lawfully registered in accordance with the applicable law. 3. Having considered the pleadings, the evidence on record and the applicable law, the determination of this issue largely turns on whether the Petitioners possessed any legally recognizable interest requiring protection through the requirement of spousal consent. 4. The requirement for spousal consent in dispositions of land was introduced to safeguard spouses from arbitrary deprivation of rights in **matrimonial property**. It is not a universal requirement applicable to every parcel of land owned by a married person. Rather, the statutory protection is predicated upon proof that the property in question constitutes matrimonial property or that the spouse possesses a legally recognizable interest therein. 5. This Court has already found, under Issues (iii) and (iv), that the Petitioners have failed to establish that Land Parcel No. KAJIADO/KITENGELA/5477 constituted matrimonial property within the meaning of the Matrimonial Property Act, 2013. The Court has further found that they have failed to establish any beneficial or overriding spousal interest capable of protection under Section 28(a) of the Land Registration Act, 2012. Those findings are dispositive of the present issue and need not be revisited. 6. Section 93 of the Land Registration Act, 2012, as it stood before its amendment by the Land Laws (Amendment) Act, 2016, recognized the interests of spouses in land held for the use and benefit of the family and imposed obligations in relation to dispositions affecting such interests. Likewise, Section 12 of the Matrimonial Property Act, 2013 restricts the alienation of matrimonial property without the consent of both spouses. However, those statutory safeguards become operative only where the property in question has first been shown to constitute matrimonial property or where the spouse asserting protection has established a legally recognizable proprietary interest. 7. The Court of Appeal in ***Amina Abdalla Ahmed v Mariam Sheikh Ahmed & 2 others [2019] eKLR*,** observed that the statutory protection accorded to spouses under the Land Registration Act is intended to safeguard genuine matrimonial interests and does not operate to invalidate transactions where no such interests have been established. 8. Similarly, in ***PNN v ZWN [2017] eKLR***, the Court of Appeal affirmed that rights under the Matrimonial Property Act arise from the existence of matrimonial property and the contribution recognized by law; they do not attach automatically to every property owned by one spouse merely because of the marital relationship. 9. In the present case, the Petitioners have not discharged the evidential burden of proving that the suit property was matrimonial property or that they possessed any proprietary interest capable of attracting the statutory requirement for spousal consent. The Court has found that the property was inherited by the 1st Respondent prior to the alleged marriages and that no evidence has been adduced to demonstrate that it subsequently acquired the legal character of matrimonial property. The Petitioners have equally failed to establish any contribution, trust or other equitable interest capable of limiting the 1st Respondent's power of disposition. 10. The Court is therefore unable to conclude that the transfer became unlawful merely because the Petitioners neither participated in nor consented to the transaction. In the absence of proof of a legally recognizable spousal interest, there existed no statutory obligation requiring their consent before the transfer could be effected. 11. The Petitioners have further alleged that the transfer violated their constitutional rights under Article 40 of the Constitution. However, as already observed, Article 40 protects existing and legally recognizable proprietary rights; it does not create proprietary interests where none exist. Since the Petitioners have failed to establish any proprietary interest in the suit property, the alleged failure to obtain their consent cannot, in itself, constitute a violation of Article 40 or any other constitutional right pleaded in the Petition. 12. Accordingly, I find and hold that the Petitioners have failed to prove, on a balance of probabilities, that the transfer of Land Parcel No. KAJIADO/KITENGELA/5477 by the 1st Respondent to the 2nd Respondent was unlawful for want of spousal consent or that the said transfer violated their constitutional or statutory rights. **vi. *Whether the Petitioners are entitled to the declaratory, injunctive, prerogative, compensatory and other reliefs sought in the Petition, including costs.*** 1. The final issue for determination is whether the Petitioners are entitled to the declaratory, injunctive, prerogative, compensatory and ancillary reliefs sought in the Petition. 2. The grant of constitutional relief is not automatic upon the filing of a petition. A petitioner bears the burden of demonstrating, on a balance of probabilities, that the impugned conduct violated or threatened to violate a right or fundamental freedom guaranteed under the Constitution. Equally, where declaratory, injunctive or prerogative orders are sought in relation to proprietary interests in land, the claimant must first establish the existence of a legally recognizable right capable of protection by the Court. 3. Having carefully evaluated the pleadings, affidavits, documentary evidence and the applicable law, this Court has arrived at the following findings. First, the present Petition is not defeated by the doctrine of *res judicata*, as the issues raised herein concerning the Petitioners' alleged constitutional and statutory rights were not shown to have been directly and substantially determined in the previous proceedings. Secondly, although the Petition is competent and not rendered incurably defective by Section 7 of the Limitation of Actions Act merely because it is brought as a constitutional petition, the Petitioners nevertheless remained under a duty to establish the substantive rights which they allege were infringed. 4. On the merits, however, the Petitioners have not discharged that burden. This Court has found that Land Parcel No. KAJIADO/KITENGELA/5477 did not constitute matrimonial property within the meaning of the Matrimonial Property Act, 2013. The evidence before the Court demonstrates that the suit property was inherited by the 1st Respondent prior to the alleged marriages and was not jointly acquired during the subsistence of those marriages. Consequently, the Petitioners did not acquire proprietary rights over the suit property merely by virtue of their marital relationship or occupation thereof. 5. The Court has further found that the Petitioners failed to establish the existence of any trust, beneficial interest or overriding spousal interest capable of protection under Article 40 of the Constitution, the Matrimonial Property Act, 2013 or Section 28(a) of the Land Registration Act, 2012. In the absence of such legally recognizable interests, the Petitioners could not successfully impugn the transfer of the suit property on the ground that their consent had not been obtained. 6. It necessarily follows that the Petitioners have also failed to demonstrate that the Respondents violated their constitutional rights under Articles 40 or 47 of the Constitution. Constitutional remedies are granted to vindicate established violations of constitutional rights. They are not available where the legal foundation upon which the alleged rights are predicated has not been proved. 7. Accordingly, the declarations sought by the Petitioners cannot issue because they have failed to establish that the transfer of the suit property was unlawful or unconstitutional. Likewise, the injunctive reliefs sought cannot be granted since the Petitioners have not demonstrated the existence of any enforceable legal or equitable interest in the suit property. For the same reason, the orders of mandamus and rectification of the land register sought against the 3rd Respondent are unavailable, there being no legal basis upon which the Court can interfere with the existing register. Equally, the claim for general, exemplary and aggravated damages must fail, no constitutional or statutory violation having been established. 8. As regards costs, Section 27(1) of the Civil Procedure Act, Cap. 21 provides that costs shall follow the event unless the Court, for good reason, orders otherwise. Although constitutional litigation may in appropriate circumstances warrant a departure from this general principle, no exceptional circumstances have been demonstrated in the present case. The Respondents have successfully defended the Petition and are therefore entitled to the costs thereof. 9. In the end result, and for the foregoing reasons, the Court finds that the Petition is devoid of merit. Consequently, the Constitutional Petition dated 30th September 2025 is hereby dismissed in its entirety with costs to the 2nd Respondent. It is so ordered. **Dated, Signed and Delivered at Kajiado Virtually this 30th Day of July 2026.** **M.D. MWANGI** **JUDGE** **In the virtual presence of:** Dr. Khaminwa for the Petitioners Ms. Chebet h/b for Mr. Kamunda for the 2nd Respondent N/A by the 1st Respondent Court Assistant: Alex **M.D. MWANGI** **JUDGE**