https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4014

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC CASE NO. E020 OF 2021** **RACHEL NTHENYA MWANGANGI** *(Legal representative of the Estate of Boniface Mwangangi Matheka-Deceased)***:::::::::::::::::::::::::::::::::PLAINTIFF** **VERSUS** **LYDIA MWIKALI SHADRACK** *(Sued in her capacity as the Administrator of the Estate of**Shedrack Wambua Kivai - Deceased)***::::::::::::::::::::DEFENDANT** **JUDGEMENT** The Plaintiff avers that between 15th June 1998 and 8th January 2004, the deceased Plaintiff lawfully purchased and paid for a piece of land from the deceased containing by measurements fourteen acres. The Plaintiff states that the deceased died before formally transferring the said fourteen acres to the deceased Plaintiff him which acres were to be excised from title number Donyo Sabuk /Komarock Block 1/12374. The Plaintiff avers that the Defendant was privy to the sale of the said fourteen acres as she willingly consented to the same by signing as a witness thereto. The Plaintiff states that at the time of petitioning for Letters of Administration Intestate in respect of the estate of the deceased, the Defendant deliberately neglected to disclose the deceased Plaintiff's purchaser's interest in the said estate. In an attempt to unjustifiably deny the deceased Plaintiff his rightful entitlement in parcel number Donyo Sabuk / Komarock Block 1/12374, the Defendant instituted ELC NO. 322 of 2009 (Machakos) Lydia Mwikali Shadrack vs Boniface Mwangangi Matheka which suit was dismissed with cost on 29th September 2017. The Plaintiff states that the Defendant was served with a demand letter in March 2020 requiring her to excise and transfer fourteen acres to the deceased Plaintiff. However, the Defendant only excised and transferred five Acres to the deceased Plaintiff and has unlawfully and without any colour of right refused and /or failed to transfer the remainder (nine acres) thereof thereby provoking this suit. The Plaintiff prays for judgment against the Defendant for; 1. A declaration that the Defendant holds nine acres in title number Donyo Sabuk/ Komarock Block 1/93198 in trust for the Plaintiff (Rachel Nthenya Mwangangi the legal representative of the estate deceased Plaintiff). 2. An order compelling the Defendant to excise and transfer nine acres from title number Donyo Sabuk/ Komarock Block 1/93198 to the Plaintiff (Rachel Nthenya Mwangangi - the legal representative of the estate of the deceased Plaintiff). 1. A permanent injunction to restrain the Defendant either by herself or her surrogates, agents and servants from entering upon, selling or in any other manner howsoever interfering with title number Donyo Sabuk / Komarock Block 1 / 93198 and particularly a portion containing by measurements nine acres which the Plaintiff is rightfully and lawfully entitled to. 1. Cost of the suit. The Defendant stated that the deceased Plaintiff, sometimes in 2009 and two years after the demise of the deceased, and in the subsistence of the deceased's Succession Cause no.499/2008, trespassed into the estate of the deceased, then under succession, started intermeddling with the said estate and upon being accosted, he changed tune and purportedly claimed to have purchase interests thereof. At no point has the Plaintiff ever purchased the purported 14 Acre from the deceased and the said claims have never been brought forward and deliberated during the lifetime of the deceased or Succession Cause no. 499/2008; That the Defendant is surprised the said claims are calculatedly being brought forth at this stage being over 13 years after the demise of the deceased and over 27 years after the purported Sale Agreement. That in Succession Cause no.499/2008 the Defendant was never a creditor/liability to the said estate. Through the succession, he neither objected nor protested to the said succession and/or mode of distribution. It is over Thirteen (13) years since the determination of Succession Cause No.499/2008 and 27 years since the purported Sale Agreement relied upon by the Plaintiff. That ELC 322/2009 was filed in a bid to protect the estate of the deceased from further calculated trespass and intermeddling activities of the deceased Plaintiff who was neither a Beneficiary nor a creditor/liability of the said estate but had taken advantage of the demise of the deceased to trespass into his estate. That her action of subdivision of the estate of the deceased was legal and she had a statutory obligation to do so as an administratrix of the estate of the deceased and the powers conferred to her vide an order of the court contained in the grant of letters of Administration and the thereafter issued Certificate of Confirmation of grant, issued on 10th August 2009 in Succession Cause No.499/2008; That the Plaintiff was neither a beneficiary nor a creditor/liability thereof and at no stage had he protested the same. The Defendant in her cross action seeks for a permanent injunction, cancellation of the Plaintiff’s title and general damages. This court has carefully considered the evidence and the submissions therein. The issues for determination in this matter are as follows; 1. *Whether or not the Plaintiff is the legal owner of a portion measuring 9 acres of the suit land?* 2. *What orders should the court issue?* The Land Registration Act is very clear on issues of ownership of land and Section 24(a) of the Land Registration Act provides as follows; *“Subject to this Act, the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto*.” Section 26 (1) of the Land Registration Act states as follows; *“The Certificate of Title issued by the Registrar upon registration … shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner… and the title of that proprietor shall not be subject to challenge except –* a. *On the ground of fraud or misrepresentation to which the person is proved to be a party; or* b. *Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”* PW1 the Plaintiff testified that between 15th June 1998 and 8th January 2004, her husband Boniface Mwangangi Matheka now deceased lawfully purchased and paid for a piece of land from the Defendant Shadrack Wambua Kivai now Deceased containing by measurements fourteen acres. The Plaintiff states that the Defendant died before formally transferring the said fourteen acres to the Plaintiff which acres were to be excised from title number Donyo Sabuk /Komarock Block 1/12374. She produced various agreements for the sale of the said suit land dated 15th June 1998 to 8th January 2004. The Court of Appeal in Munyu Maina vs Hiram Gathiha Maina (2013) eKLR held that; *“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register. It is our considered view that the respondent did not go this extra mile that is required of him and no evidence was led to rebut the appellant’s testimony.”* Section 26 of the Land Registration Act which guarantees the concept of indefeasibility of title does not extend to any property that has been found to have been unlawfully acquired. The Court of Appeal in Attorney General vs Torino Enterprises Limited (Civil Application 84 of 2012) (2022) KECA 78 (KLR) (4 February 2022) (Judgment) held that; *“We have considered the provisions of section 26 of the Land Registration Act (repealed) in light of the provisions of Article 40 of the Constitution which guarantees protection of right to property and it is our considered view that the concept of indefeasibility of title is subject to Article 40 (6) of the Constitution which states that: “The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.” Guided by the provisions of Article 40 (6) of the Constitution, we hold that the concept of indefeasibility or conclusive nature of title is inapplicable to the extent that title to the suit land was unlawfully acquired. See Denis Noel Mukhulo & Another v. Elizabeth Murungari & Another [2018] eKLR.”* I have perused the documents adduced as evidence by all parties. It is not in dispute that the suit land is registered in the name of Lydia Mwikali Shedrack the Defendant. The Law of Contract Act clearly stipulates the requirements for a valid instrument to convey an interest in land. Section 3 (3) of the Law of Contract Act (Cap 23 of the Laws of Kenya) stipulates that; *No suit shall be brought upon a contract for the disposition of an interest in land unless—* 1. *the contract upon which the suit is founded—* 2. *is in writing;* 3. *is signed by all the parties thereto; and* 4. *the signature of each party signing has been attested by a witness who is present when the contract was signed by such party:* While Section 38 (1) of the Land Act states; *Other than as provided by this Act or by any other written law, no suit shall be brought upon a contract for the disposition of an interest in land—* *(a) the contract upon which the suit is founded—* *(i) is in writing;* *(ii) is signed by all the parties thereto; and* *(b) the signature of each party signing has been attested to by a witness who was present when the contract was signed by such party.* In Harris JA in Garvey vs Richards (2011) JMCA 16 the court in considering the essential components of a contract reflected the following principles; *“It is a well-settled rule that an agreement is not binding as a contract unless it shows an intention by the parties to create a legal relationship. Generally, three basic rules underpin the formation of a contract, namely, an agreement, an intention to enter into contractual relationships and consideration. For a contract to be valid and enforceable an essential terms governing the relationship of the parties must be incorporated therein. The subject matter must be certain. There must be positive evidence that a contractual obligation, born out of an oral or written agreement is in existence.”* The Supreme Court of United Kingdom in RTS Flexible Systems Ltd vs Moikerei Alois Muller GMBH & Co K. G. (2010) UKSC 14; *“The general principles are not in doubt, whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon them, by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations. Even if certain terms of economic or other significance to the parties have not been finalized, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a precaution to a concluded and legally binding agreement”.* The Defendant states that the deceased Shadrack Wambua Kivai died on 5th June 2007, and prior to his death, such claims were never raised by the deceased Plaintiff who equally remained quiet through the petition for letters of administration where the estate of the deceased was subjected to succession with the Plaintiff raising no claim whatsoever over his purported purchase interest in the said estate. She maintains that her husband never entered into any agreement for the said land. That the deceased Plaintiff accompanied by 3 armed Police officers and a surveyor, appeared on the suit land and the Defendant was ordered to hive off a 5 acre parcel of land in favour of the Plaintiff or herself and her children face immediate arrest. The allegation was that herself and her family had sold the said demanded portion. That the surveyor who had come with the 3 police officers and the deceased plaintiff immediately entered the said land and hived off the 5 Acre Parcel of land from the deceased estate under Land Parcel No. Donyo Sabuk/Komarock Block 1/91138 and in favour of the Plaintiff. That the matter is currently under investigation by the Independent Policing and Oversight Authority (IPOA) and officers from the DCIO-Headquarters in Kiambu upon the Defendant lodging a complaint. I have carefully perused the documents adduced as evidence. The Plaintiff produced the land sale agreements which were signed by both Boniface Mwangangi Matheka the buyer and Shadrack Wambua Kivai the seller. Indeed, the first agreement 15th June 1998 was witnessed by the Defendant. All the payments have been signed of by the Shadrack Wambua Kavai. The Defendant has not adduced any evidence to prove that the same were a forgery. It is on record that the Defendant sued the deceased Plaintiff in ELC case No. 322/2009 but the same never proceeded for substantive hearing as the same was dismissed for want of prosecution. No evidence has been adduced to show that the Defendant never sold 14 acres of the suit land to the Plaintiff. I see no evidence that the Defendant or her sons were intimidated, coerced, unduly influenced, threatened or forced to sub-divide title number Donyo Sabuk/ Komarock Block 1/91138. The 1st Defendant hastens to add that the Plaintiff willingly and freely excised five acres from Donyo Sabuk / Komarock Block 1 / 91138 and transferred the same to the Plaintiff. The Defendant is being untruthful by denying the sale agreements when she signed the initial one. Section 109 of the Evidence Act Cap 80 is clear that; *''The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.''* The well-known mantra *“he who asserts must prove.”* Was well pointed out by the Court of Appeal in Jennifer Nyambura Kamau vs Humphrey Mbaka Nandi (2013) eKLR as follows; *“We have considered the rival submissions on this point and state that Section 107 and 109 of the Evidence Act places the evidential burden upon the appellant to prove that the signature on these forms belong to the respondent. Section 107 of the Evidence Act provides that “whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” Section 109 stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. If an expert witness was necessary, the evidential burden of proof was on the appellant to call the expert witness. The appellant did not discharge the burden and as Section 108 of the Evidence Act provides, the burden lies on that person who would fail if no evidence at all were given on either side.”* In James Muigai Thungu vs County Government of Trans-Nzoia & 2 others (2022) eKLR it was held that; *“It is now settled law that whosoever asserts the existence of a legal right or liability is vested with the burden to prove it except in so far as the law may expressly exempt him or her. Section 107 of the Evidence Act Chapter 80 Laws of Kenya succinctly states:* *Whosever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.* *Also, further, Section 108 of the Act states thus:* *The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.* *Again Section 109 of Act refers to the burden of proof of a particular fact. It states that:* *The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.* I have perused the said agreements and find that the same are valid and enforceable. The Plaintiff avers that before and after the dismissal of ELC NO 322 of 2009 (Machakos), the Defendant caused title number Donyo Sabuk / Komarock Block 1 / 12374 to be sub-divided further resulting in Title Number Donyo Sabuk/ Komarock Block1 / 91138 from which the Defendant ought to have excised and transferred fourteen acres to the deceased Plaintiff. The Plaintiff states that the Defendant holds nine acres in title number Donyo Sabuk/ Komarock Block 1 / 93198 in trust for her which title is a resultant to sub-division of Donyo Sabuk / Komarock Block 1/91138. The Plaintiff avers that the Defendant should be compelled by Court to excise nine acres in Donyo Sabuk/ Komarock Block 1/93198 and transfer the same to her. InTwalib Hatayan Twalib Hatayan & Anor vs Said Saggar Ahmed Al-Heidy & Others (2015) eKLR*,* this Court examined and stated the law on trusts as follows; “According to the Black’s Law Dictionary, 9th Edition; a trust is defined as “1. The right, enforceable solely in equity, to the beneficial enjoyment of property to which another holds legal title; a property interest held by one person (trustee) at the request of another (settlor) for the benefit of a third party (beneficiary).” Under the Trustee Act, “… the expressions “trust” and “trustee” extend to implied and constructive trust, and cases where the trustee has a beneficial interest in the trust property…” In the absence of an express trust, we have trusts created by operation of the law. These fall within two categories; constructive and resulting trusts. Given that the two are closely interlinked, it is perhaps pertinent to look at each of them in relation to the matter at hand. A constructive trust is an equitable remedy imposed by the court against one who has acquired property by wrong doing. … It arises where the intention of the parties cannot be ascertained. If the circumstances of the case are such as would demand that equity treats the legal owner as a trustee, the law will impose a trust. A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position for his own benefit (see Halsbury’s Laws of England supra at para 1453). As earlier stated, with constructive trusts, proof of parties’ intention is immaterial; for the trust will nonetheless be imposed by the law for the benefit of the settlor. Imposition of a constructive trust is thus meant to guard against unjust enrichment. … A resulting trust is a remedy imposed by equity where property is transferred under circumstances which suggest that the transferor did not intend to confer a beneficial interest upon the transferee ... This trust may arise either upon the unexpressed but presumed intention of the settlor or upon his informally expressed intention. (See Snell’s Equity 29th Edn, Sweet & Maxwell p.175). Therefore, unlike constructive trusts where unknown intentions maybe left unexplored, with resulting trusts, courts will readily look at the circumstances of the case and presume or infer the transferor’s intention. Most importantly, the general rule here is that a resulting trust will automatically arise in favour of the person who advances the purchase money. Whether or not the property is registered in his name or that of another, is immaterial (see Snell’s Equity at p.177) (supra).” Emphasis added From the evidence and the facts of this case I find that the Defendant holds the suit land intrust for the Plaintiff and should transfer 9 acres as claimed. The cross action has not been proved on a balance of probabilities and the same is dismissed with costs. I find that the plaintiff has proved her case on a balance of probabilities and I grant the following orders; 1. A declaration that the Defendant holds nine acres in title number Donyo Sabuk/ Komarock Block 1/93198 in trust for the Plaintiff (Rachel Nthenya Mwangangi the legal representative of the estate deceased Plaintiff). 2. An order compelling the Defendant to excise and transfer nine acres from title number Donyo Sabuk/ Komarock Block 1/93198 to the Plaintiff (Rachel Nthenya Mwangangi - the legal representative of the estate of the deceased Plaintiff). 3. A permanent injunction to restrain the Defendant either by herself or her surrogates, agents and servants from entering upon, selling or in any other manner howsoever interfering with title number Donyo Sabuk / Komarock Block 1 / 93198 on a portion containing by measurements nine acres which the Plaintiff is rightfully and lawfully entitled to. 4. Cost of the suit. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 1ST DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**