https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4405

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MILIMANI LAW COOURTS, NAIROBI** **ELCLC E057 OF 2025** **ERNEST KARIGI NGOTHO** ***(Suing as the Personal Representative of the Estate*** ***of the Late Feresia Waruguru alias Fraciah Waruguru)* ....................................PLAINTIFF** **-VERSUS-** **GITHURAI TING'ANG'A CO. LTD...............................................................DEFENDANT** **JUDGEMENT** 1. By an Originating Summons dated 27th January 2025 pursuant to **Order 37 Rule 7 of the Civil Procedure Rules, 2010, Article 40(1) of the Constitution of Kenya, 2010, and Sections 28(j) and 37 of the Land Registration Act, 2012**, the Plaintiff, Ernest Karigi Ngotho, suing as the Personal Representative of the Estate of the Late Feresia Waruguru alias Fraciah Waruguru, sought the following orders: 2. A declaration that the Plaintiff is the **l**awful and/or beneficial owner of Plot No. 789 of L.R. No. 5964/2, situated within Nairobi County, and that the property, though registered in the name of the Defendant, be vested in and registered in the Plaintiff's name. 3. An order directing the Defendant to transfer Plot No. 789 of L.R. No. 5964/2 to the Plaintiff forthwith and, in default, that the Court Administrator be empowered to execute all documents necessary to effect the transfer. 4. Costs of the suit. 5. The **Originating Summons** is grounded on the Plaintiff's **Supporting Affidavit** sworn on **27th January 2025**, wherein he avers that **Plot No. 789 of L.R. No. 5964/2** originally belonged to his late mother, Feresia Waruguru alias Fraciah Waruguru, who had purchased the property from Julius Gikonyo Mwaniki. He states that following the purchase, the Defendant issued the deceased with a Certificate of Ownership, thereby acknowledging her interest in the suit property. 6. The Plaintiff further deposes that he is the duly appointed Personal Representative of the Estate of the late Feresia Waruguru alias Fraciah Waruguru by virtue of Certificate of Confirmation of Grant dated **21st March 2017**. He asserts that under the confirmed grant, he is the sole beneficiary of the suit property and is therefore entitled to have the property transferred and registered in his name. 7. It is the Plaintiff's case that although the Defendant remains the registered proprietor of the suit property, it has, despite numerous requests, refused, neglected and/or failed to execute the necessary transfer instruments in his favour. He maintains that he has been in actual, open, exclusive and uninterrupted possession of the suit property and that the Defendant's continued refusal to facilitate the transfer infringes his right to property under Article 40 of the Constitution of Kenya, 2010. 8. The Plaintiff further relies on the decision in **Gichiri -Vs- Waruguru (Environment and Land Case No. 117 of 2018) [2022] KEELC 2222 (KLR)**, contending that the Court therein dismissed a challenge to his proprietary rights and confirmed that no other person has an adverse claim over the suit property. He therefore asserts that the Defendant has no lawful justification for withholding the transfer of the property and urges the Court, in the interests of justice and equity, to grant the reliefs sought in the Originating Summons. 9. The record shows that the Originating Summons was duly served upon the Defendant on 20th February 2025, as evidenced by the Affidavit of Service deponed by David Jod N. on 20th February 2025. The Affidavit states that service was effected upon the Defendant through its secretary at its offices in Githurai, Nairobi County. Despite such service, the Defendant failed to enter appearance or file any response to the Plaintiff's claim, and the matter therefore proceeded as unopposed. **Plaintiff's Submissions** 1. In his written submissions, the Plaintiff identified two issues for determination, namely: whether the Plaintiff had proved his case on a balance of probabilities, and whether the Plaintiff was entitled to the reliefs sought. Counsel submitted that although the suit was undefended, the Plaintiff still bore the legal burden of proving his claim in accordance with **Sections 107, 109 and 110 of the Evidence Act**. 2. It was argued that the Plaintiff had discharged that burden through both his oral testimony and documentary evidence, which established that the suit property had been lawfully transmitted to him under a Certificate of Confirmation of Grant dated 21st March 2017, that he had remained in continuous and uninterrupted possession of the property, and that no other person had asserted a competing proprietary claim. 3. The Plaintiff further submitted that the evidence demonstrated the existence of a constructive trust in his favour. Counsel argued that the Defendant, having issued the deceased with a Certificate of Ownership, held the legal title as a trustee pending formal registration in the Plaintiff's name. 4. In support of that proposition, reliance was placed on **Shah & 7 Others -Vs- Mombasa Bricks & Tiles Limited & 5 Others (Petition 18 (F020) of 2022) [2023] KESC 106 (KLR)**, where the Supreme Court recognized **constructive trusts** as overriding interests under the **Land Registration Act**. It was submitted that permitting the Defendant to retain the legal title despite the Plaintiff's beneficial interest would be inequitable and contrary to the principles of equity. 5. On the question of reliefs, the Plaintiff submitted that having established his beneficial interest and the existence of a constructive trust, he was entitled to the orders sought in the Originating Summons. Counsel relied on Section 80 of the Land Registration Act, 2012, which empowers the Court to rectify the register, and further referred to the meaning of a vesting order as set out in Black's Law Dictionary and by the State Department of Lands. The Court was therefore urged to issue the declaratory and consequential orders sought so as to safeguard the Plaintiff's right to property under **Article 40 of the Constitution of Kenya, 2010**. **Issues for Determination** 1. Having considered the Originating Summons, the evidence tendered by the Plaintiff, and the written submissions on record, the Court is of the view that the dispute raises a single issue for determination: Whether the Plaintiff has proved his entitlement to the orders sought in the Originating Summons. **Analysis and Determination** 1. The Plaintiff's claim is uncontroverted, the Defendant having been duly served but failing to enter appearance or file any response. Nonetheless, it is trite that the absence of a defence does not automatically entitle a plaintiff to judgment. The Plaintiff must still discharge the burden of proof on a balance of probabilities as required under **Sections 107, 109 and 110 of the Evidence Act, Cap 80 Laws of Kenya**. 2. From the evidence on record, the Plaintiff produced a Certificate of Ownership showing that the Defendant had allocated Plot No. 789 of L.R. No. 5964/2 to his late mother, Feresia Waruguru alias Fraciah Waruguru, who had purchased the property from Julius Gikonyo Mwaniki. He further produced a Certificate of Confirmation of Grant dated 21st March 2017, demonstrating that he is the duly appointed Personal Representative and the sole beneficiary of the suit property. There is no evidence challenging either the deceased's ownership of the property or the Plaintiff's entitlement under the confirmed grant. 3. The Plaintiff also testified that he has remained in actual, open, exclusive and uninterrupted possession of the suit property and that despite numerous requests, the Defendant has failed or refused to execute the necessary transfer documents. The Plaintiff further placed before the Court the judgment in **Gichiri -Vs- Waruguru (Environment & Land Case No. 117 of 2018) [2022] KEELC 2222 (KLR)**, which established that there was no competing claim to the suit property. That evidence equally remains unchallenged. 4. The Court is satisfied that the evidence establishes that the Defendant retained the legal title to the suit property after allocating it to the Plaintiff's late mother and issuing her with a **Certificate of Ownership**. Upon the deceased's demise, her beneficial interest lawfully devolved to the Plaintiff through the confirmed grant. 5. In those circumstances, the Defendant's continued retention of the legal title, without any competing claim or lawful justification, gives rise to a **constructive trust** in favour of the Plaintiff. As the **Supreme Court** observed in **Shah & 7 Others v Mombasa Bricks & Tiles Limited & 5 Others (Petition 18 (F020) of 2022) [2023] KESC 106 (KLR)**, constructive trusts constitute overriding interests recognized under the **Land Registration Act**, and equity will not permit a registered proprietor to rely solely on legal title where it would be unconscionable to do so. 6. Consequently, the Court finds that the Plaintiff has proved, on a balance of probabilities, that he is the beneficial owner of Plot No. 789 of L.R. No. 5964/2 and is entitled to have the legal title transferred into his name. The Defendant's failure to execute the requisite transfer documents is unsupported by any evidence or lawful justification and cannot defeat the Plaintiff's beneficial interest. Disposition 1. In the result, having found that the Plaintiff has proved his case on a balance of probabilities, judgment is hereby entered in favour of the Plaintiff against the Defendant in the following terms: 2. A declaration is hereby issued that the Plaintiff, Ernest Karigi Ngotho, as the Personal Representative of the Estate of the Late Feresia Waruguru alias Fraciah Waruguru, is the lawful and beneficial owner of Plot No. 789 of L.R. No. 5964/2, and the said property shall be vested in and registered in his name. 3. The Defendant shall, within thirty (30) days from the date of this Judgment, execute all the requisite documents necessary to transfer Plot No. 789 of L.R. No. 5964/2 to the Plaintiff. 4. In default of compliance with order (b) above, the Deputy Registrar of this Court shall be at liberty to execute all the documents necessary to effect the transfer and registration of Plot No. 789 of L.R. No. 5964/2 in favour of the Plaintiff. 5. The Plaintiff shall have the costs of the suit. **It is so ordered.** **DATED**, **SIGNED** and **DELIVERED** virtually at **NAIROBI** on this **13th** day of **July, 2026.** **MOHAMMED N. KULLOW** **JUDGE** **Judgement delivered in the presence of: -** **Mr. Murithi** for the Plaintiff **N/A** for the Defendant **Ms. Mwangi** Court Assistant