https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5099

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT HOMABAY** **ELC APPEAL NO. E034 OF 2025** MICHEAL ODHIABO OTIENO ROBERT OCHIENG OTIENO MOSES JAMES OTIENO JOHN JUMA OTIENO.......................................................APPELLANTS **VERSUS** ZAKARIA ASEDA ATIENO...............................................RESPONDENT **(Being an appeal from the Judgment and Decree of Hon. S.O. Ongeri (Senior Principal Magistrate) delivered on 30th September 2025 in Oyugis CM ELC No. E008 of 2024)** **JUDGMENT** **Background.** 1. This is a first appeal arising from the Judgment and Decree of Hon. S.O. Ongeri (Senior Principal Magistrate) delivered on 30th September 2025 in Oyugis CM ELC No. E008 of 2024. 2. In the impugned judgment, the learned trial magistrate entered judgment in favour of the respondent, who had been the plaintiff before the subordinate court, and granted the following orders: 1. A declaration that the plaintiff is the legal owner of Land Parcel No. CENTRAL KASIPUL/KACHIEN/249. 2. An order of eviction directing the defendants, their agents and servants to vacate the suit property within six (6) months from the date of judgment. 3. A permanent injunction restraining the defendants, their agents, servants and persons claiming under them from entering, re-entering, cultivating, trespassing upon or in any manner interfering with Land Parcel No. CENTRAL KASIPUL/KACHIEN/249. 4. Costs of both the suit and the counterclaim. 3. Being dissatisfied with the whole of the judgment and decree, the appellants lodged the present appeal by a Memorandum of Appeal dated 23rd October 2025, challenging both the findings of fact and law reached by the learned trial magistrate. 4. The dispute revolves around Land Parcel No. CENTRAL KASIPUL/KACHIEN/249. While the respondent claims absolute ownership by virtue of registration following succession proceedings relating to the estate of the late Bwanpas Atieno alias Bonfas Atieno, the appellants contend that their late father lawfully purchased a defined portion measuring approximately two and one-half (2½) acres from Samson Atieno, a son of the deceased proprietor, as early as 28th December 1968. They assert that following the sale, their family entered into possession, developed the land, and has remained in uninterrupted occupation for decades. 5. The appellants' principal complaint is that although the respondent subsequently became registered as proprietor upon obtaining letters of administration to the estate of the deceased, such registration did not extinguish the appellants' equitable rights arising from the sale transaction and long occupation. They contend that the respondent became registered as a trustee and therefore holds the disputed portion subject to a constructive trust in their favour. **Duty of a First Appellate Court.** 1. This being a first appeal, this Court is under a duty to reconsider, re-evaluate and re-analyse the entire evidence on record and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify and should therefore give due allowance for that disadvantage. 2. The principles governing the jurisdiction of a first appellate court are now settled. In **Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123**, the Court of Appeal stated: **"An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts are well settled. Briefly put, they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect."** 1. The same principle was reiterated in **Peters v Sunday Post Ltd [1958] EA 424**, where the former Court of Appeal for Eastern Africa held that although an appellate court has jurisdiction to review the evidence in order to determine whether the conclusions reached by the trial court should stand, it must exercise that jurisdiction with caution, particularly where findings are based upon the credibility of witnesses. 2. Guided by the foregoing principles, this Court has carefully considered the pleadings, proceedings, documentary evidence, oral testimony, the judgment appealed from, the Memorandum of Appeal and the applicable law. **Summary of the Pleadings Before the Trial Court.** 1. The respondent instituted the suit by way of a Plaint dated 22nd January 2024 seeking, inter alia;- 1. A declaration that he is the lawful and registered proprietor of Land Parcel No. CENTRAL KASIPUL/KACHIEN/249. 2. An eviction order against the appellants. 3. A permanent injunction restraining the appellants from entering or interfering with the suit property. 4. General damages for trespass. 5. Costs. 2. The respondent pleaded that he is the registered proprietor of the suit property, having inherited the same through succession, and that the appellants had unlawfully entered onto the land without his authority, cultivated it and denied him peaceful possession. 3. The appellants filed a Statement of Defence denying the respondent's claim and simultaneously lodged a Counterclaim. 4. In the Counterclaim, the appellants pleaded that their late father, Meshack Ochieng Otieno, purchased a defined portion measuring approximately two and one-half (2½) acres from Samson Atieno on 28th December 1968 for valuable consideration. They pleaded that immediately after the purchase, their family entered into possession, occupied and developed the purchased portion openly and continuously. 5. They further pleaded that although the respondent later became registered proprietor during succession proceedings, he acquired legal title subject to their existing equitable interest and therefore held the disputed portion in trust for them. 6. Consequently, the appellants sought— 1. A declaration that the respondent holds the disputed 2½ acres in trust for them. 2. A declaration that they are entitled to the said portion. 3. An order compelling the respondent to transfer the portion to them. 4. In the alternative, rectification of the register through subdivision and registration of the purchased portion in their favour. 5. Costs. **Evidence Before the Trial Court** **Respondent's Case** 1. The respondent testified as PW1. He stated that he is the registered proprietor of Land Parcel No. CENTRAL KASIPUL/KACHIEN/249. 2. His evidence was that the suit property originally belonged to his late father, Bwanpas Atieno alias Bonfas Atieno, who died in 1968. Following succession proceedings, the property was transmitted to him. 3. He stated that although the appellants were already residing on the land when he petitioned for letters of administration, he neither informed nor involved them because they were not members of his family. He also pointed out that the appellants were in possession when his father died and they have been in possession since 1962. 4. He further testified that the appellants were strangers and squatters upon the land and denied that any sale had ever taken place between his family and the appellants' father. 5. It was his evidence that the appellants had unlawfully entered and cultivated portions of his land without consent and should therefore be evicted. **Appellants' Case** 1. The first appellant testified on behalf of the family. He stated that his late father, Meshack Ochieng Otieno, purchased approximately two and one-half (2½) acres from Samson Atieno on 28th December 1968. 2. According to him, although the registered owner had already died by the time of the sale, the vendor was a son of the deceased proprietor and represented the family in the transaction. 3. He testified that immediately after the purchase, his family entered into possession of the purchased portion and has continuously occupied, cultivated and developed the land ever since. 4. He acknowledged that at the time of the sale, the registered owner had already died but maintained that the purchaser acquired valid equitable rights which have been honoured by the family's uninterrupted occupation for several decades. 5. The appellants maintained that when the respondent subsequently obtained title through succession proceedings, he did so with full knowledge of their occupation and therefore became registered subject to their equitable interest. 6. They urged the trial court to declare that the respondent held the disputed portion in constructive trust for them and to order transfer of the same. **Grounds of Appeal** 1. The appellants challenge the judgment on eight principal grounds, namely that the learned trial magistrate erred both in law and in fact by;- 1. Finding that the respondent had proved his case despite being an administrator of the estate and therefore a fiduciary owing obligations to persons with beneficial interests over the estate property. 2. Failing to find that a constructive trust arose once the respondent obtained registration while fully aware of the appellants' equitable interest arising from the earlier sale and occupation. 3. Failing to appreciate that registration through succession did not defeat the appellants' beneficial interest over the purchased portion measuring two and one-half (2½) acres. 4. Dismissing the appellants' counterclaim notwithstanding the evidence tendered in support thereof. 5. Failing to apply binding decisions of the superior courts relating to constructive trusts and overriding interests. 6. Failing to appreciate that the respondent acquired title with both actual and constructive notice of the appellants' longstanding occupation and competing equitable interest. 7. Failing to recognize that the appellants' possession and occupation constituted overriding interests binding upon the respondent notwithstanding his registration as proprietor. 8. Failing to properly consider the appellants' submissions and the authorities relied upon. **Issues for Determination** 1. Having carefully reconsidered the pleadings, the evidence on record, the judgment appealed against and the grounds of appeal, the following issues arise for determination;- 1. Whether the learned trial magistrate properly evaluated the evidence placed before the court. 2. Whether the respondent's registration as proprietor following succession extinguished the appellants' equitable interest arising from the sale transaction of 28th December 1968. 3. Whether the evidence established the existence of a constructive trust in favour of the appellants over the disputed portion measuring two and one-half (2½) acres of Land Parcel No. CENTRAL KASIPUL/KACHIEN/249. 4. Whether the appellants established an overriding interest binding upon the respondent notwithstanding his registration as proprietor. 5. Whether the learned trial magistrate erred in dismissing the appellants' counterclaim. 6. Whether the appeal is merited and what orders should issue. 2. These issues adequately capture the substance of the eight grounds of appeal and will guide the Court in determining whether the judgment of the subordinate court ought to be upheld or set aside. **Determination** 1. Having carefully reconsidered the pleadings, the evidence adduced before the trial court, the judgment appealed from, the grounds of appeal and the submissions by the parties, this Court is of the considered view that the appeal turns on one central question; whether the respondent's registration as proprietor of Land Parcel No. CENTRAL KASIPUL/KACHIEN/249, following succession proceedings, extinguished the appellants' equitable interest arising from the sale of a portion measuring two and one-half (2½) acres to their late father and their subsequent long occupation of the land. 2. At the outset, it is important to discuss the doctrine of customary trust. The Supreme Court in ***Kiebia v M'Lintari & another (Petition No. 10 of 2015) [2018] KESC 22 (KLR)*** discussed the doctrine of customary trust within the framework of section 30(g) of the repealed Registered Land Act, Cap. 300, it is important to note that the Registered Land Act was repealed by the Land Registration Act, No. 3 of 2012. The repeal, however, did not abolish the doctrine of customary trust. Rather, the Land Registration Act preserved overriding interests under section 25(b), expressly recognizing **trusts, including customary trusts,** as overriding interests affecting registered land. Therefore, references by the Supreme Court to section 30(g) of the repealed Registered Land Act must be understood in their historical context. The applicable statutory provision in the present dispute is section 25(b) of the Land Registration Act, 2012, which preserves customary trusts as overriding interests binding upon a registered proprietor without the necessity of registration. 3. In the case of **Alan Kiama v. Ndia Mathunya & Others, C.A 42/1978**, Madan J.A indicated that ***“What meaning is to be given to Section 30 (g)? The rights under customary law may be argued to be extinguished by Section 28… It must refer to equitable rights, it cannot be otherwise, it has to be so to be sensibly interpretable. Overriding interests which arise in right only of possession or actual occupation without legal title are equitable rights which are binding on the land, therefore on the registered owner of it. Under Section 30(g) they possess legal sanctity without being noted on the register; Overriding interests which so exist or are so created are entitled to protection because they are equitable rights even if they have a customary law flavor… Equity always protects the just rights of the oppressed. Equity always prevents an injustice being perpetrated. Equity sanctifies the administration of justice…”*** 1. The legal position was rightly captured by the Supreme Court in ***Kiebia v M'Lintari & another* (Petition No. 10 of 2015) [2018] KESC 22 (KLR)**, where, at paragraph 48, the Court posed the following pertinent question: **“If the rights of a person in possession or actual occupation of Trust land before registration, are not rights arising under African customary law, what are they? Or to put it differently, if the rights of a person arising under African customary law as evidenced by his/her being in possession or actual occupation of the land are not overriding interests under Section 30 (g) as decreed in Obiero v. Opiyo, what are they? Madan J.A, inappropriately termed them “equitable rights” even if they have “a customary flavour”, while Nyarangi J.A termed them “valid rights”.** 1. The supreme court in **Kiebia’s case** further noted that it is customary law and practice that clothes the rights of a person in possession or actual occupation, with legal validity. If customary law and practice, does not recognize such possession or actual occupation, then it cannot be a right to which a person is entitled. It further emphasised what Madan J.A said in the case of Alan Kiama that; ***“..…they (meaning, the rights in possession or actual occupation) are not subject to interference or disturbance such as by eviction save where inquiry is made and they are not disclosed. In this case, the respondents were in possession and actual occupation of the land and they also cultivated it to the knowledge of the appellant. He made no inquiry, any inquiry would have been superfluous; he had himself lived on the land together with the respondents for a time and knew that they cultivated it.”*** 1. The Court of Appeal in the case of **Mwabwika v Mohamed (Civil Appeal E100of2023) 2026 KECA 923(KLR) (15May2026) (Judgment)** under paragraph 53 stated that ***“In addition to the foregoing, the respondent’s long occupation of the suit property with the owners’ knowledge, permission and/or acquiescence supported the learned Judge’s holding that the respondent had acquired an overriding interest in respect of the portion that she occupied, and for good reason.”*** 1. In the case **Mungai Njoroge & another v Kiarie Njoroge & another [2020] KECA 453 (KLR),** the respondents occupied their respective parts of the suit land for many years and cultivated crops on the suit land which they considered and inherited as their home/land. The Court established that the 1st appellant could not in law divest them of their rightful inheritance. 2. The Court of Appeal in **Mwabwika v Mohamed (Civil Appeal E100of2023) 2026 (supra)** comprehensively addressed the issue under paragraphs 61 to 65, and provided that the court is always tasked to ascertain the parties' shared intentions, actual, inferred or imputed, having regard to the whole course of their conduct. In the present case, the common intention of the parties for the appellants to settle on part of their land. 3. The Court of Appeal in **Mwabikwa’s case** conclude that the circumstances of the case impute the existence of a constructive trust. The court clarified that long occupation under licence, combined with expenditure and detrimental reliance, confers on the respondent an equitable interest thereon. The Court also under paragraph 65 established that the respondent under such circumstances equally finds refuge in the doctrine of proprietary estoppel, which operates as an independent but related equity. That such as a prolonged period possession as was the case here, give rise to equitable rights that a court of conscience cannot ignore. 4. Considering the present case, it is common ground that the suit property was originally registered in the name of the late **Bwanpas Atieno alias Bonfas Atieno**, who died in the year 1968. It is equally undisputed that the respondent subsequently petitioned for letters of administration and, upon confirmation of the grant, caused the entire parcel of land to be transmitted and registered in his name. 5. The evidence on record further establishes that by the time the respondent obtained registration, the appellants' family had been in occupation of the disputed portion of land for several decades. Indeed, the respondent candidly admitted during cross-examination that when he commenced succession proceedings, the appellants were already in occupation of the suit property. That his father died when they started living there. They took possession in 1962. His explanation for not notifying them was simply that they were not members of his family. That admission is significant because it demonstrates that the respondent acquired title with full knowledge of the appellants' possession and occupation. 6. The appellants' case throughout the proceedings was that their late father purchased the disputed portion measuring approximately 2½ acres from **Samson Atieno**, a son of the deceased proprietor, on 28th December 1968. Following the purchase, the appellants' family entered into possession, cultivated the land, established their occupation and have remained in uninterrupted possession to date. 7. Although the respondent disputed the sale, he did not controvert the fact of the appellants' longstanding occupation. Neither did he offer any satisfactory explanation why a family allegedly consisting merely of trespassers would remain on the land openly and peacefully for decades without any steps being taken to remove them until after succession proceedings had been concluded. 8. The learned trial magistrate approached the dispute as one involving the respondent's indefeasible title arising from registration. With respect, this Court finds that the learned magistrate failed to appreciate that registration under the Land Registration Act does not operate in isolation from equitable principles. Registration confers legal ownership but does not necessarily extinguish equitable interests which the law recognises and protects. 9. The respondent became registered proprietor in his capacity as the administrator of the estate of the deceased proprietor. An administrator occupies a fiduciary position. He is not at liberty to use the process of succession to defeat existing equitable rights affecting the estate. The office of a personal representative carries with it obligations of utmost good faith and fairness. A personal representative cannot appropriate estate property to himself free from obligations which attached to the property before transmission. 10. In the present case, the respondent admitted that he was aware of the appellants' occupation before commencing succession proceedings. Having acquired legal title with that knowledge, equity could not permit him to rely upon registration alone to defeat their pre-existing equitable interest. 11. Equity has consistently maintained that a person who acquires legal title with notice of another person's beneficial interest takes the property subject to that equitable interest. The respondent therefore held the legal title impressed with the obligations attached to it. 12. The appellants' equitable claim is strengthened by their uninterrupted possession extending over many years. Their occupation was neither clandestine nor temporary. It was open, notorious and known to the respondent and his predecessors. Such possession could not simply be ignored by the administrator when administering the estate. 13. The respondent argued that since he became the registered proprietor through succession, his title was absolute. This argument overlooks the distinction between legal ownership and beneficial ownership. While registration vested legal title in him, equity recognises that beneficial ownership may reside elsewhere where the circumstances justify the imposition of a constructive trust. 14. The Court is persuaded that the respondent's legal title was burdened by an equitable obligation arising from the sale transaction and the appellants' long possession. Registration alone did not extinguish those rights. 15. This Court also finds that the respondent's conduct in excluding the appellants from succession proceedings despite his admitted knowledge of their occupation cannot be ignored. A court of equity will not permit a trustee or personal representative to benefit from his fiduciary position by defeating the beneficial interest of another. 16. The learned trial magistrate further erred by failing to properly evaluate the evidence regarding the appellants' occupation. Rather than considering whether such occupation gave rise to equitable rights enforceable against the respondent, the court focused exclusively on the respondent's legal title. 17. This Court is satisfied that the appellants established, on a balance of probabilities, that their late father acquired an equitable interest over the disputed 2½ acres and that such interest continued to subsist notwithstanding the respondent's subsequent registration. 18. The Court further finds that the respondent, having become registered proprietor with full knowledge of the appellants' occupation, held the disputed portion in trust for them. His title was therefore qualified by that trust and could not lawfully be asserted to defeat the appellants' beneficial interest. 19. Consequently, the learned trial magistrate erred both in law and in fact in dismissing the counterclaim. The evidence before the subordinate court established a superior equitable claim on the part of the appellants which ought to have been recognised and protected. 20. Upon this Court's own independent evaluation of the entire record, it is satisfied that each of the grounds of appeal has merit. 21. In the premises, this Court finds that the respondent's suit ought to have been dismissed, while the appellants' counterclaim ought to have succeeded. **Disposition** 1. Accordingly, the appeal succeeds and the judgment and decree of the Senior Principal Magistrate delivered on 30th September 2025 in Oyugis CM ELC No. E008 of 2024 are hereby set aside. 2. In substitution thereof, this Court enters judgment as follows:- 1. The respondent's suit before the subordinate court is hereby dismissed in its entirety. 2. Judgment is entered for the appellants on the counterclaim. 3. It is hereby declared that the respondent holds a portion measuring approximately **two and one-half (2½) acres** comprised in **Land Parcel No. CENTRAL KASIPUL/KACHIEN/249** in trust for the appellants. 4. It is hereby declared that the appellants are beneficially entitled to the said portion measuring **2½ acres**. 5. The respondent shall, within ninety (90) days from the date hereof, procure the subdivision of Land Parcel No. CENTRAL KASIPUL/KACHIEN/249 and execute all documents necessary to transfer the said portion measuring **2½ acres** to the appellants jointly. 6. In default of compliance within the stipulated period, the Deputy Registrar of this Court shall execute all documents necessary to effect the subdivision and transfer in place of the respondent. 7. The Land Registrar, Homa Bay County, and the County Surveyor shall facilitate the subdivision and registration of the appellants as proprietors of the said 2½ acres upon presentation of this judgment and decree. 8. The appellants shall have the costs of the counterclaim in the subordinate court. 9. The appellants shall also have the costs of this appeal **It is so ordered.** **Judgement dated and delivered at Homa Bay this 23rd day of July 2026 via teams’ platform.** **In the Presence of;** * + - 1. Michael Odhiambo – 1st Appellant 2. Bunde for the Appellant – Absent. 3. Omuthee, Absent 4. Court Assistant; Present. JUSTICE J.W WANYONYI – JUDGE