[2025] KEELC 3976 (KLR)

[2025] KEELC 3976 (KLR)

The court found that the plaintiff did not establish adverse possession because entry and possession were pursuant to a sale agreement, and the purchase price was not fully paid, leaving the parties in a contractual phase. Additionally, the plaintiff failed to clearly identify the portion of land claimed, as the sale agreement did not specify the acreage and no survey evidence was provided. However, the court held that a constructive trust arose in favour of the plaintiff for 0.75 acres, as conceded by the defendant, upon payment of the outstanding KShs 4,000. The defendant is to facilitate transfer of 0.75 acres to the plaintiff upon payment or deposit of the balance, with each party...

Citation
[2025] KEELC 3976 (KLR)
Parties
Plaintiff: Charles Lyula Mutsotso; Defendant: Michel Avondi Mikoye
Court
Environment and Land Court
Court Station
Environment and Land Court at Kakamega
Jurisdiction
Kenya
Judgment Date
22 May 2025
Case Number
Enviromental and Land Originating Summons 107 of 2019
Procedural Posture
Originating Summons / Judgment
Outcome
Plaintiff's case succeeds partially; adverse possession claim dismissed, constructive trust claim allowed for 0.75 acres upon payment of balance.
Judges
DO Ohungo
Legal Topics
Adverse Possession, Constructive Trust, Sale of Land, Limitation of Actions, Identification of Land Portion
Source Language
English
Land and Property Adverse Possession Constructive Trust Sale of Land Limitation of Actions Identification of Land Portion

Case Brief

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Parties

Charles Lyula Mutsotso

Plaintiff

Michel Avondi Mikoye

Defendant

Procedural Posture

Originating Summons / Judgment

Legal Issues

  1. 1 Whether the plaintiff has been in open, continuous, peaceful and exclusive possession of part of land parcel Kakamega/Shinyalu/557 measuring 0.9 hectares for a period exceeding 12 years.
  2. 2 Whether the defendant, by selling part of the land and allowing the plaintiff to take possession for over 12 years, created a constructive trust in favour of the plaintiff.
  3. 3 Whether the sale and possession extinguished the defendant's proprietorship by operation of law.

Ratio Decidendi

The court found that the plaintiff did not establish adverse possession because entry and possession were pursuant to a sale agreement, and the purchase price was not fully paid, leaving the parties in a contractual phase. Additionally, the plaintiff failed to clearly identify the portion of land claimed, as the sale agreement did not specify the acreage and no survey evidence was provided. However, the court held that a constructive trust arose in favour of the plaintiff for 0.75 acres, as conceded by the defendant, upon payment of the outstanding KShs 4,000. The defendant is to facilitate transfer of 0.75 acres to the plaintiff upon payment or deposit of the balance, with each party...

Court Disposition

Plaintiff's case succeeds partially; adverse possession claim dismissed, constructive trust claim allowed for 0.75 acres upon payment of balance.

Orders

  • A declaration is made that the defendant created a constructive trust in favour of the plaintiff in respect of 0.75 acres of Kakamega/Shinyalu/557.
  • Plaintiff to pay KShs 4,000 to the defendant within 21 days; if defendant declines, plaintiff may deposit the amount in court.