https://new.kenyalaw.org/akn/ke/judgment/keca/2026/923

Mwabwika v Mohamed (Civil Appeal E100 of 2023) [2026] KECA 923 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 923 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal E100 of 2023 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA May 15, 2026 Between Mwinyihaji Mohamed Mwabwika Appellant and Fatuma Mohamed Respondent (Being an appeal from the Judgment and Decree of the Environment and Land Court at Kwale (A. E. Dena, J.) delivered on 20th April 2023 in Appeal No. E002 of 2021) Judgment 1.This is a second appeal from the judgment and decree of the Environment and Land Court at Kwale (A.E. Dena, J.) dated 20th April 2023 in ELC Appeal No. E002 of 2021. The genesis of the instant appeal is the suit filed by the appellant (Mwinyihaji Mohamed Mwabika) against the respondent (Fatuma Mohamed) in Kwale CMC Land Case No. 29 of 2019 vide a Plaint dated 30th April 2019. 2.The appellant’s case was that he was the lawful owner of the parcel of land Reference No. Kwale/Tiwi/1640 (the suit property), which he inherited jointly with his now deceased brothers from their deceased father; that he was the only surviving son; that the respondent was a distant relative who was allowed to temporarily settle on the suit property on humanitarian grounds by one of the appellant’s deceased brothers after she had been driven out of her family land; that the arrangement was expressly temporary, and on the understanding that the respondent would vacate and return to her family land once their dispute was resolved; that the respondent subsequently refused to vacate the suit property and, in disregard of the owners’ agreement, began laying a foundation for a permanent building while falsely claiming that the land had been given to her by the owner; that, despite reports being made to the area chief and the officer in charge of Kwale Police Station, the respondent persisted with the construction; that the respondent’s actions amounted to trespass and a violation of his right to property; and that repeated demands by him and other relatives that the respondent stops the construction and vacate the land were ignored, leaving him with no alternative but to institute the suit. 3.By reason of the matters aforesaid, the appellant prayed for orders that a permanent injunction do issue to restrain the respondent, her servants or agents, or anyone claiming under her, from trespassing on or otherwise dealing in the suit property; an eviction order removing her from the suit property; and costs of the suit. 4.In her Statement of Defence dated 27th November 2019, the respondent denied the appellant’s claim and averred that the appellant and his deceased brothers, namely Salimu Mohamed Mwabika, Mwinyi Mohamed Bwika, Mwinyikhamisi Mohamed Katunza and Juma Mohamed Haji, were her cousins and indeed the registered proprietors of the suit property; that two of the deceased owners, Mwinyikhamisi Mohamed Katunza and Juma Mohamed Haji, gifted her a portion of their respective shares in the suit property during their lifetime; that she had lived on the said portions for a period of over 20 years; and that the appellant did not reside on the suit property but lived in Mackinnon. Accordingly, she prayed that the appellant’s suit be dismissed with costs. 5.In its judgment dated 30th June 2021, the trial court (Patrick Wambugu Mwangi, PM) found that the suit property was originally registered under the Registered Land Act, Cap. 300 (now repealed) in the joint names of the appellant and his deceased brothers, but without any indication of distinct shares. By reference to sections 101, 102 and 103 of the Registered Land Act and section 91 of the Land Registration Act, the court held that where land is registered in the names of several persons without specification of shares, a presumption of joint tenancy arises, with the attendant right of survivorship. 6.Applying that presumption, the court found that, upon the appellant’s brothers’ demise, their interests automatically vested in the appellant as the surviving joint proprietor, thereby rendering him the sole registered proprietor of the suit property. Accordingly, the court held that the deceased brothers could not lawfully pass or gift any portion of the land to the respondent without the participation of all joint proprietors, and that their interests could not devolve upon the respondent whether by way of testate or intestate succession as long as the appellant survived them. 7.The trial court further considered and rejected the respondent’s attempt to invoke limitation of actions and adverse possession. In conclusion, the court found that the respondent’s entry and continued occupation of part of the suit property was with the consent and permission of the joint proprietors, including the appellant, and that permissive or consensual occupation cannot found a claim in adverse possession. Consequently, the learned Magistrate found that the appellant had proved his claim on a balance of probabilities, and that he was entitled to protection of his proprietary rights. Accordingly, the court entered judgment in his favour as prayed in the plaint. 8.Aggrieved by the trial court’s decision, the respondent filed an appeal in the ELC to wit ELC Appeal No. E002 of 2021 on the grounds that the trial Magistrate erred in law and fact in holding that the appellant had a valid title sufficient to defeat her claim; in finding that the suit property was held under joint tenancy; in failing to apply the provisions of the Limitation of Actions Act with regard to a claim for recovery of land; by effectively granting eviction orders despite her prolonged occupation of over three decades with children and grandchildren born on the land; and in exercise of his discretion to award costs to the appellant. 9.In its judgment dated 20th April 2023, the ELC (A. E. Dena, J.) concurred with the trial court’s finding that the respondent’s entry onto the land was permissive and by no means unlawful, having been invited onto and accommodated on the suit property by the appellant and his deceased brothers, who were all registered proprietors at the time; and that, in the circumstances, adverse possession could not be imputed. On the other hand, the ELC departed from the trial court’s decision with regard to the nature of the proprietorship, holding that, where a title issued under the Registered Land Act was silent on whether proprietorship was joint or in common, the law presumes a tenancy in common in equal shares, and not joint tenancy; and that the trial Magistrate erred in presuming joint tenancy and in invoking the doctrine of survivorship to vest the entire property in the appellant. 10.The ELC further found that, although in a tenancy in common a proprietor could in principle deal with or gift his undivided share during his lifetime subject to statutory requirements, the respondent had failed to prove either by documentary or other cogent evidence that the alleged gifting by two of the deceased co- proprietors ever took place. Nevertheless, the court considered the undisputed evidence that the respondent was a close relative who had been allowed onto the land with the consent of all proprietors and had remained there openly for over twenty years. 11.In conclusion, the learned Judge held that the evidence on record did not support the appellant’s assertion that the occupation was temporary or conditional and that, by reason of that long and permissive occupation, the respondent had acquired an overriding or equitable interest recognised by law. Accordingly, the learned Judge rejected the characterization of the respondent as a trespasser and held that eviction orders were unwarranted. In view of the foregoing, the court partly allowed the appeal, set aside the judgment and orders of the trial court and substituted them for an order dismissing the suit with no order as to costs. 12.Aggrieved by the learned Judge’s decision, the appellant filed the instant appeal vide a Memorandum of Appeal dated 10th July 2023 on a whopping 17 grounds, namely:“1.The learned Judge erred in law and in fact in dismissing the plaintiff's/respondent's suit despite overwhelming evidence showing that the plaintiff was a legal owner of parcel of land plot no. Kwale/tiwi/1640.2.The learned Judge erred in law and in fact in admitting the memorandum of appeal dated 22nd November 2021 after the withdrawal of the memorandum of appeal dated 1st September 2021.3.The learned Judge erred in law and in fact in allowing the Respondent's Application dated 10th November 2021 and eventually granting the Respondent leave to appeal out of time ex-parte and without the participation and or hearing the Appellant herein.4.The learned Judge erred in law and in fact in failing to consider the Respondents written submissions hence arriving at a wrong judgment.5.The learned Judge erred in law and in fact in confining the plaintiff suit to the issue of trespass to the exclusion of violation of right to property as enshrined in the constitution of Kenya.6.The learned Judge erred in law and in fact in finding that the case is for trespass and eviction only.7.The learned Judge erred in law and in fact in holding that the plaintiff purported to claim the property under survivorship.8.The learned Judge erred in law and in fact in finding that the invitation of the Defendant to stay on the parcel of land by the plaintiff and deceased brothers was not temporarily.9.The learned Judge erred in law and in fact in finding that the Defendant obtained an overriding interest due to staying on the parcel of land for long as contained in section 30 of the RLA and section 25 and 28 of the Land Registration Act.10.The learned Judge erred in law and in fact in finding that the plaintiff/Appellant cannot use and or rely on indefeasibility of title.11.The learned Judge erred in law and in fact in holding that the Defendant had stayed on the parcel of land plot no. KWALE/TIWI/1640 for over 20 years without tendering any proof by the Defendant.12.The learned Judge erred in law and in fact in in holding that the Defendant was not a trespasser on the land Plot No. KWALE/TIWI/1640.13.The learned Judge erred in law and in fact in finding that the orders for eviction would not be warranted due to the trust created following the actions of the Plaintiff and his Co tenant.14.The learned Judge erred in law and fact in failing to evict the Respondent from the parcel of land Title Number KWALE/TIWI/1640 owned by the Appellant and his deceased brothers.15.The learned Judge erred in law and in fact in vacating the orders granted by the trial magistrate vide a judgment issued on the 30th July 2021.16.The learned Judge erred in law and in fact in dismissing the Plaintiff's suit.17.The learned Judge erred in law and in fact in failing to award the Plaintiff the costs of the suit.” 13.On the grounds aforesaid, the appellant prayed that the judgment of the ELC be set aside, and that a permanent injunction do issue restraining the respondent, her relatives, agents, servants, employees and/or contractor from trespassing, erecting, constructing and/or in any manner interfering with the suit property; orders evicting the respondent from the suit property; and orders awarding costs of this appeal and those in the ELC to the appellant. 14.Learned counsel for the appellant, M/s. Bwika & Company, filed written submissions and a list of authorities dated 28th May 2025. On their part, learned counsel for the respondent, M/s. J. O. Magolo & Company, filed written submissions dated 24th November 2025. 15.To our mind, the following 3 issues commend themselves for our determination, namely: whether the learned Judge erred in admitting the appeal and extending the time for filing the appeal; whether the learned Judge failed to properly analyse and re- evaluate the evidence as a first appellate court; and whether the learned Judge erred by limiting the case to the issue of trespass only, and in failing to address the rights of an indefeasible owner to property vis-à-vis that of a licensee. 16.On the 1st issue as to whether the learned Judge was at fault in admitting the appeal and by extending the time for filing the appeal, learned counsel for the appellant submitted that the trial court’s judgment was delivered on 30th July 2021; that the respondent filed a Memorandum of Appeal out of time on 9th September 2021 after about 40 days from the date of judgment; that, on 15th November 2021, the respondent filed a notice of withdrawal of the appeal on 11th November 2021; that an ex-parte order was issued by the superior court granting leave to the respondent to appeal out of time; that the appellant was never granted an opportunity to be heard in the said application; and that the appeal was therefore unprocedural and wrongfully admitted. 17.In rebuttal, learned counsel for the respondent submitted that the order allowing the appeal to be filed out of time was never contested before the superior court, and no challenge was raised in that regard; that the impugned order stands to date; and that the appeal was properly before the superior court, and so is the present appeal. Counsel further contended that the appellant had the opportunity and the right to apply for the order to be set aside, but that he did not take any steps in that regard. 18.We hasten to observe that the Notice of Appeal on which the 2nd appeal before us is anchored expressly indicates that the appellant comes on appeal from the judgment of the ELC dated 20th April 2023. Accordingly, this Court lacks jurisdiction to scrutinize or pronounce ourselves on any other decision of that court that is not the subject of the instant appeal. 19.In Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR), the Supreme Court held that:“A notice of appeal is a primary document to be filed outright whether or not the subject matter under appeal is that which requires leave or not. It is a jurisdictional pre- requisite.” 20.In Ruben & 9 others v Nderitu & another [1989] KLR 459, this Court held that:“… the jurisdiction of the Court of Appeal is limited … and if there is no appeal or no intention to appeal as manifested by lodgment of the notice of appeal, the Court of Appeal would have no business to meddle in the business of the [superior court].” 21.Furthermore, we find nothing on the record of the proceedings before the ELC to suggest that the appellant was aggrieved by the orders of that court granting the respondent leave to file the appeal out of time. No such orders are contained in the record of appeal, and, as matters presently stand, there is no competent appeal before this Court challenging those orders. 22.If indeed the appellant was dissatisfied with the ELC’s decision to grant leave to file the appeal before that court out of time, the proper course would have been to lodge an appeal against, or seek a review of, those specific orders. The appellant cannot be permitted to belatedly and indirectly mount a challenge to those earlier orders in respect of which no notice or record of appeal exists in the present appeal. Accordingly, that ground fails. 23.Turning to the 2nd issue as to whether the learned Judge failed to properly analyse and re-evaluate the evidence on record on the 1st appeal, learned counsel for the appellant submitted that the learned Judge fell short in her analysis of the evidence; and that, being a first appeal, the learned Judge ought to have exercised a lot of caution considering that, unlike the trial court, she did not have the advantage of seeing and hearing the witnesses. 24.To bolster their contention, counsel cited the cases of Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123; and Peters v Sunday Post Limited [1958] EA 424, submitting that, in her judgment, the learned Judge erroneously misinterpreted the evidence relating to the relationship between the parties. 25.On their part, learned counsel for the respondent submitted that the learned Judge evaluated the evidence and found, inter alia, that the respondent was in occupation of part of the parcel of land and has been in such occupation for a long period of time in excess of 12 years; that the learned Judge also found that the suit property was owned jointly with each person having his share of the property; and that two of the registered owners wanted the respondent to occupy their portion of the land with the knowledge of the others, including the appellant. 26.We take to mind the fact that the appellant’s grievance with regard to this issue is directed at the learned Judge’s alleged mischaracterization of the relationship between the respondent and the registered proprietors of the suit property as being siblings rather than cousins. The appellant takes issue with paragraph 9 of the impugned judgment where the learned Judge recorded the respondent’s evidence as follows:“Defendants Evidence9.The Defendant (DW1) gave evidence in support of her case. It was her oral testimony that … her elder brother one Juma Kesi (since deceased) gave her the land to build and live with her children and who had grown up on the land.” 27.Contrary to the appellant’s contention, a consideration of the Judgment shows that the learned Judge was merely paraphrasing the respondent’s oral testimony in which she stated as follows:“Mwinyihaji Bwika is my brother …. I was given the land by Juma Kesi my elder brother. I was given the land build and live with my children …. My elder brother has since deceased.” 28.It was also not lost on the learned Judge that in her evidence, the respondent went on to clarify that her father and the appellant’s father were brothers, a fact which the learned Judge captured in paragraph 10 of the judgment. In view of the foregoing, the learned Judge cannot be faulted for accurately recording the respondent’s testimony. In any event, the impugned paragraph was clearly intended to set out the respondent’s evidence, and not to analyse or make definitive findings on the nature of the familial relationship between the parties. 29.Even assuming that the learned Judge had concluded that the parties herein were siblings and not cousins, a conclusion she did not draw, the appellant has failed to demonstrate how such a conclusion would have had any material or consequential bearing on the determination of the substantive issues of law falling to be determined. The central issues identified by the learned Judge concerned the nature of proprietorship of the suit property and the manner, legality, and effect of the respondent’s entry and occupation of the land, none of which turned on the precise degree of consanguinity between the parties. Likewise, that ground of appeal fails. 30.On the 3rd and last issue as to whether the learned Judge was at fault by allegedly limiting the dispute between the parties to the issue of trespass only, the mainstay of the appellant’s case was that the learned Judge failed to address the rights of an indefeasible owner to property vis-à-vis that of a licensee. 31.We take to mind the learned Judge’s pronouncement in the impugned judgment where she observed that the appellant’s case was that the respondent and members of her family were trespassers who should have been evicted from the suit property; that, in order to succeed, the appellant was obligated to establish on the required balance of probabilities that he was the owner of the suit property, and that the respondent’s entry thereon was unlawful; that it was common ground that the title deed showed the registered absolute proprietors as Salimu Mohamed Mwabwika, Mwinyi Mohamed Bwika, Mwinyihamisi Mohamed Katunza, Mwinyihaji Mohamed Mwabwika and Juma Mohamed Haji; but that the title was silent on whether the five held the property jointly or in common. 32.As the learned Judge went on to conclude, in the absence of a reflection in the register whether registration of the five proprietors was as joint or common proprietors, Section 91 of the Land Registration Act, 2012 (which she cited) applied to their co-tenancy. In conclusion, the learned Judge held that, in the absence of any indication in the title Register as to the nature of the brothers’ proprietorship, it was obligatory to presume that the ownership was in common in equal share; that the appellant could not purport to claim under survivorship; and that Juma Mohamed Haji and Mwana Khamisi Katunza had the right to gift the respondent rights to their portions of the suit property during their lifetime but with written consent of the other co-tenants, which consent was indisputably apparent albeit without any indication as to the length of stay. 33.Finally, the following words of the learned Judge are instructive:“35.…. Nothing was presented before the trial court to show that the stay was conditional or temporary even by the Plaintiff who has brought this action. The fact that the Defendant had stayed for over 20 years on the suit property has not been controverted by the Plaintiff and his witnesses. The Plaintiff allowed the Defendant who is their relative to stay for this long and in the process the Defendant acquired an overriding interest on the portion that she occupied with their permission as contemplated under Section 30 of the RLA and section 25 & 28 of the Land Registration Act 2012. They cannot now purport to use indefeasibility of title ….38.Let me add that the case before me is for trespass and eviction. I have already made a finding that the Defendant was not a trespasser on the land and on this basis the orders for eviction would not be warranted and this is further fortified by the trust created following the actions of the Plaintiff and his co-tenant.” 34.Taking issue with the learned Judge’s decision, learned counsel for the appellant submitted that the fact that the appellant and his deceased brothers did not subdivide or transfer a portion of the suit property to the respondent was sufficient proof that the respondent was invited to stay on the suit property temporarily; that no agreement was ever executed or transfer registered, and no money ever changed hands; and that an act done to assist a cousin had turned to bite the appellant. 35.Counsel further submitted that the appellant was the indefeasible owner of the suit property with all rights and privileges over the said parcel; that, in contrast, the respondent’s claim to the land was based on an “oral permission/invitation to the land”; and that the relationship between the proprietors of the suit property and the respondent was that of landowner and licensee. 36.Counsel cited the cases of Runda Cofffee Estates v Ujagar Singh (1966) EA 564; and Faraj Maharus v J.B. Martin Glass Industries & 3 others [2005] KECA 303 (KLR) for the proposition that license is a personal permission granted by a landowner to another person to occupy, personally, for a consideration, the other’s land, and may be for a limited time or unlimited; and that a temporary licence is not sufficient to create or transfer of title to the grantee. 37.Contending that the appellant was entitled to the reliefs sought, counsel submitted that the respondent was permitted to stay on the suit property on humanitarian grounds; that the appellant, being an indefeasible owner with all the rights and privileges, has opted to approach the courts for an injunction and eviction orders; and that to conclude that a trust had resulted from the extended stay amounted to an extension of the doctrine of adverse possession by a licensee. 38.On their part, learned counsel for the respondent submitted that the appellant sought injunctive relief to restrain the respondent from trespassing on the suit property as well as eviction orders; that those are the prayers on which the learned Judge pronounced herself; that the court was not asked to make a declaration as to indefeasibility of title which, in any case, was not challenged; and that the appellant did not have superior title to any of his co- owners, including anybody who claims from them whether by gift or otherwise. According to counsel, the court having found that the respondent was not a trespasser, the appellant could not lawfully seek her eviction. 39.It is against the preceding factual and legal backdrop that we now turn to examine and pronounce ourselves on the mainstay of the appellant’s case and, in particular, the determinant point of law raised in the 3rd and decisive issue in the instant appeal, namely whether the appellant’s property rights were founded on joint tenancy or tenancy in common; and whether equity presumes the existence of a trust in favour of the respondent for the apparent detrimental reliance on the consent to settle on the suit property for such a long period of time. Needless to say, the distinction between joint tenancy and tenancy in common is one of the most fundamental imperatives in the law of property. 40.In drawing that distinction, we take to mind the provision of section 91 of the Land Registration Act, 2012 which reads:1.In this Act, co-tenancy means the ownership of land by two or more persons and includes joint tenancy or tenancy in common.2.Except as otherwise provided in any written law, where the instrument of transfer of an interest in land to two or more persons does not specify the nature of their rights there shall be a presumption that they hold the interest as tenants in common in equal shares. 41.It is worth noting that the repealed Registered Land Act was silent on the course to be taken where the rights of co-tenants was not specified in the instrument made in their favour. The Act only provided in section 101(1) that an instrument made in favour of two or more persons, and the registration giving effect to it, shall show whether those persons are joint proprietors or proprietors in common and, where they are proprietors in common, the share of each proprietor. However, the subsequent enactment in section 91 of the Land Registration Act lends clarity to the property rights enjoyed by tenants in common in circumstances where their shares are not specified in the title Register. Accordingly, the presumption in subsection (2) applied to the circumstances of this case. 42We need to point out right at the outset that joint tenancy and tenancy in common are two distinct forms of co-ownership of immovable property that differ in their ownership structure and rights as well as the manner in which such rights are created (see Williams v Hensman (1861) 1 J&H 546). 43.In joint tenancy, each owner has an equal share of the property and, upon the death of one owner, their share automatically passes to the surviving owners without the need for probate. This is commonly referred to as the right of survivorship. This form of co- ownership is characterised by the unity of possession; unity of interest; unity of title and unity of time. 44.The defining characteristic of the estate in joint tenancy is the right of survivorship (jus accrescendi) whereby, upon the death of one joint tenant, his interest accrues automatically to the surviving joint tenants, leaving nothing to pass under his estate. In a tenancy in common, by contrast, each co-owner holds a share in the property whether their rights are specified or not. There is no right of survivorship, and each tenant in common may dispose of his share inter vivos or by will as he pleases. Put differently, it allows independent transfer of one’s share in the property. Notably, this form of ownership does not require the four unities of joint tenancy. 45.It must be borne in mind, though, that where property is conveyed into or registered in joint names, it is presumed that the parties hold beneficially as joint tenants. However, this presumption is rebuttable by evidence of a common intention to hold as tenants in common in unequal shares, particularly where the title Register is silent in that regard, as was the case here (see the persuasive English decision in Stack v Dowden [2007] UKHL 17; [2007] 2 AC 432; [2007] 2 WLR 831 (HL) where the House of Lords drew the distinction between joint tenancy and tenancy in common in equity). 46.The locus classicus on the severance of joint tenancy and its conversion into a tenancy in common remains the decision of Page- Wood VC in Williams v Hensman (supra) where three modes of severance were identified: an act of a joint tenant operating on his own share; mutual agreement among the co-owners; and a course of dealing sufficient to intimate that all parties treated their interests as constituting a tenancy in common, as was apparent in the present case in view of the fact that the title Register did not disclose the nature of the property rights held by the appellant and his deceased brothers (see also the House of Lords decision in Stack v Dowden (supra)). 47.In Goodman v Gallant [1986] Fam. 106, the Court of Appeal confirmed that where there is an express declaration of trust as to beneficial shares, that declaration is conclusive and a tenancy in common in equity is thereby established. Equity, as a general principle, leans against joint tenancy where contributions are unequal, preferring to recognise separate, proportionate shares (see Bull v Bull [1955] 1 QB 234, per Denning, LJ). 48.Except for the manner in which the courts below decreed an equitable right on the respondent’s part to remain in the designated part of the suit property, the indefeasibility of the title held by the registered proprietors of the suit property was not in dispute. In his suit, the appellant’s sought a permanent injunction to restrain the respondent from trespassing upon and/or otherwise dealing with the suit property, as well as an eviction order. 49In view of the foregoing, we find nothing on record to fault the learned Judge for interrogating the nature of the appellant’s title; whether the respondent could be characterised as a trespasser; and whether the appellant was entitled to the orders sought. 50.Given that the title was silent on the nature of the proprietorship enjoyed by the appellant and his brothers, the learned Judge cannot be faulted for relying on the provisions of section 91(2) of the Land Registration Act in presuming a tenancy in common in equal shares, and in treating the deceased owners’ shares as part of their respective estates out of which the uncontested licence enjoyed by the respondent may be construed as a gift in the nature of an equitable or constructive trust on account of the long period of occupation and developments undertaken thereon in expectation of permanent residence. 51.The fact that it was not disputed that the registered owners of the suit property invited the respondent, their close relative, to stay in the suit property is of itself instructive. The respondent’s evidence that she had lived on the land for over 20 years was corroborated by PW1, a son to one of the deceased owners. In those circumstances, the respondent could not by any means be regarded as a trespasser. Indeed, her entry and occupation of the land was with the knowledge, consent, and permission of all the registered proprietors. 52.The appellant’s contention that the invitation extended to the respondent was only temporary or conditional was contradicted by the proprietors’ conduct in letting her occupy part of the suit property for such an extended period and carry out developments thereon. In any event, we find nothing to suggest that her occupation was subject to any conditions, the breach of which would justify her eviction, including the erection of permanent structures on the land. Accordingly, the learned Judge rightly concluded that the respondent was not a trespasser, and that the orders sought for her eviction from the suit property were unwarranted. 53.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. 54.Section 28 of the repealed Registered Land Act provided that:28.The rights of a proprietor, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject -a.to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; andb.unless the contrary is expressed in the register, to such liabilities, rights and interests as affect the same and are declared by section 30 not to require noting on the register …. 55.In addition, section 30 of the repealed Act provided that:30.Unless the contrary is expressed in the register, all registered land shall be subject to such of the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register –(a)… …;… …;(g)the rights of a person in possession or actual occupation of land to which he is entitled in right only of such possession or occupation, save where inquiry is made of such person and the rights are not disclosed; …. 56.Section 28 of the Land Registration Act now provides for customary trusts in the following words:28.Unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register—a.…;b.trusts including customary trusts; …. 57.Pronouncing himself on the import of section 28 of the Land Registration Act, Angote, J. had this to say in Robert Mbui v Kennedy Mwanzia Musembi [2018] KEELC 4747 (KLR):“41.Actual occupation of land is capable of being an overriding interest over the land. Section 28 of the Land Registration Act provides that all registered land shall be subject to trusts, including customary trusts.42.Before the enactment of the Land Registration Act which commenced on 2nd May, 2012, the Registered Land Act, Cap 300 provided at Section 30(g) that actual occupation of land was one of the recognized overriding interests over land that need not to be registered...43.Of course, the issue of “actual occupation” of land being an overriding interest over land has caused untold confusion on its applicability vis-à-vis the sanctity of title …44.It is because of the confusion that Section 30(g) of the Registered Land Act had introduced in the land tenure system that when the Land Registration Act, 2012 was enacted, it was done away with and was replaced with the concept of trusts, including customary trusts, being an overriding interest on the land.” 58.In Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another [2018] KESC 22 (KLR), the Supreme Court made the following observations concerning customary trusts:“52.Flowing from this analysis, we now declare that a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the trusts to which a registered proprietor, is subject under the proviso to Section 28 of the Registered Land Act. Under this legal regime, (now repealed), the content of such a trust can take several forms. For example, it may emerge through evidence, that part of the land, now registered, was always reserved for family or clan uses, such as burials, and other traditional rites. It could also be that other parts of the land, depending on the specific group or family setting, were reserved for various future uses, such as construction of houses and other amenities by youths graduating into manhood. The categories of a customary trust are therefore not closed. It is for the court to make a determination, on the basis of evidence, as to which category of such a trust subsists as to bind the registered proprietor.Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in Kiarie v. Kinuthia, that what is essential is the nature of the holding of the land and intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are:1.The land in question was before registration, family, clan or group land2.The claimant belongs to such family, clan, or group3.The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous.4.The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances.5.The claim is directed against the registered proprietor who is a member of the family, clan or group.53.We also declare that, rights of a person in possession or actual occupation under Section 30(g) of the Registered Land Act, are customary rights … Once it is concluded, that such rights subsist, a court need not fall back upon a customary trust to accord them legal sanctity, since they are already recognized by statute as overriding interests.” 59.While the Supreme Court’s decision in Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another (ibid) as well as the afore-cited decisions of the ELC settle the matter to the extent that the respondent’s property rights fall squarely on the statutorily recognised “customary trust” and “overriding interests”, we nonetheless find it necessary to go further and explore the equitable position of a licensee in prolonged occupation of land as was the case here. 60.To our mind, the more complex question before this Court is whether a licensee who has occupied property for an extended period (in this case for a period exceeding twenty years), with the knowledge and permission of the registered owners, may be entitled to claim a beneficial interest in that property by way of constructive trust or proprietary estoppel notwithstanding the absence of any formal conveyance or declaration of trust in their favour. 61.It must be borne in mind, though, that a bare licence, being a mere permission to occupy, confers no proprietary interest and is revocable at will. It is, in the classic formulation, no more than a personal right which, standing alone, cannot found a claim in property law. However, equity has long recognised that the strict application of this principle may, in appropriate circumstances, work unconscionable results, and it is in this space that the doctrines of constructive trust and proprietary estoppel come into operation. 62The constructive trust in this context arises where there is a common intention between the legal owner and the claimant that the latter should have a beneficial interest in the property, and where the claimant has acted to their detriment in reliance on that common intention. The foundational exposition of this principle is found in the judgment of Lord Diplock in Gissing v Gissing [1970] UKHL 3; [1971] AC 886 where the House of Lords held that a constructive trust is imposed by equity wherever the legal owner of property has so conducted himself that it would be inequitable for him to deny the claimant a beneficial interest therein. Notably, the common intention need not be expressed; it may be inferred from the conduct of the parties, including improvements to the property, and the assumption of responsibilities in relation to it. 63.In Lloyds Bank plc v Rosset [1990] UKHL 14; [1990] 1 All ER 1111 (HL); [1991] 1 AC 107; [1990] 2 WLR 867, Lord Bridge set out the two-limb test for establishing a constructive trust in property, namely: an express common intention to share beneficial ownership followed by detrimental reliance; or where there is no express agreement, direct contributions to the purchase price or mortgage from which the court can infer a common intention. Either way, a person in occupation, including a licensee, can claim a beneficial interest under a constructive trust. The Court's task is to ascertain the parties' shared intentions, actual, inferred or imputed, having regard to the whole course of their conduct. 64.The common intention of the appellant and his deceased brothers was to permit the respondent to settle on part of their land held under a tenancy in common. In particular, two of the deceased brothers allocated the respondent and her family a section of the suit property where they were allowed to settle. In detrimental reliance on their common intention, she proceeded to build a home where she and her family continued to reside to this day for a period of more than 20 years. Viewed through the lenses of common law as enunciated in the afore-cited judicial authorities and statute law, the circumstances of the case before us also impute the existence of a constructive trust. Simply put, her long occupation under licence, combined with expenditure and detrimental reliance, confers on the respondent an equitable interest thereon (see Inwards v Baker [1965] 2 QB 29; Errington v Errington and Woods [1952] 1 KB 290). 65.At the risk of belabouring the point, we also hasten to add that the respondent’s equally finds refuge in the doctrine of proprietary estoppel, which operates as an independent but related equity. The classic statement of the doctrine is that of Fry J in Willmott v Barber (1880) 15 Ch D 96, later restated and broadened by Oliver, J. in Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1981] 1 All ER 897; [1982] QB 133, and authoritatively confirmed by the House of Lords in Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776. For proprietary estoppel to arise, three elements must be established: a representation or assurance made to the claimant; reliance by the claimant on that assurance; and detriment suffered by the claimant in consequence of his or her reasonable reliance. Where these elements are established, equity will not permit the legal owner to resile from his assurance and the court will grant such relief as is proportionate to satisfy the equity raised in the claimant's favour. 66.All in all, courts have recognised that possession of immovable property or any part thereof under a licence, may, in appropriate circumstances, such as a prolonged period as was the case here, give rise to equitable rights that a court of conscience cannot ignore, particularly where the licensor has by his conduct encouraged the licensee to treat the property as their own and to expend money or labour upon it. 67.Having carefully considered the record of appeal, the grounds on which it was anchored, the rival submissions, the afore-cited judicial authorities and the law, we reach the inescapable conclusion that:a.the appellant and his deceased brothers held the suit property as tenants in common in equal shares under and by virtue of section 91(2) of the Land Registration Act;b.the appellant and his brothers had the independent right to appoint any part of their share and gift or convey it to any person of their choice either inter vivos (as did the appellant’s brothers), under a will or in intestacy;c.two of the appellant’s deceased brothers allocated part of their rightful share of the suit property to the respondent with intent that she settles thereon with her family;d.the evidence on record discloses a common intention — express or to be inferred from the parties' conduct — that the respondent, as licensee, should have a beneficial interest in the appointed portion of the suit property;e.by the time of their demise, such licence had not been revoked by the appellant’s deceased brothers;f.the respondent acted to her detriment in reliance on that intention and constructed a home where they have lived for the last two decades; andg.in addition to the overriding interest as well as the customary trust that accrued in favour of the respondent, an equity was created in her favour, well founded in the constructive trust as known to common law. 68By reason of the matters aforesaid, we find that the appeal fails and is hereby dismissed. Accordingly, the judgment and decree of the ELC at Kwale (A. E. Dena, J.) delivered on 20th April 2023 be and is hereby upheld. 69.Considering that the appeal concerns a land dispute between family relations, each party shall bear its own costs. DATED AND DELIVERED AT MOMBASA THIS 15TH DAY OF MAY, 2026.A. K. MURGOR.....................................JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb......................................JUDGE OF APPEALG. W. NGENYE-MACHARIA.....................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDeputy Registrar