https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4500

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT** **AT KISUMU** **ELC (LA) E060 OF 2024** **GEORGE DOMINIC OTIENO ……………..………................……..........…..APPELLANT** **VERSUS** **MAXWEL DAN OBAGO ….....…...................................................…..1ST RESPONDENT** **MARY CAREN OBONYO..................................................................2ND RESPONDENT** **JUDGMENT** 1. Vide the Memorandum of Appeal dated 29th of July 2023, the Appellant George Dominic Otieno penned 6 grounds of Appeal against the decision of Hon. E.N. Mwenda principal Magistrate dated 10th June, 2024 arising from **Kisumu CMC ELC NO. 90 of 2019** between himself as the plaintiff versus Maxwell Dan Obago and Mary Caren Obonyo who were the Defendant in that suit. 2. The Memorandum of Appeal did not plead and/or specify the reliefs it sought, against the impugned judgment. The grounds penned thereof were *interalia*. 3. That the Honourable trial magistrate erred in law and fact to hold that the appellants title could not be said to be un assailable by reason of the Appellant’s failure to disclose when Barnabas Ayengo Okoro died whereas nothing controverts the position that the title was acquired regularly upon transmission; 4. The Honourable trial magistrate erred in law and fact w2hen he held that the interested party had taken possession of the property and had been in possession whereas contrary evidence is adduced by the interested party that neither had one taken up possession, and/or occupation and was staying for away from the properly since the purchase. 5. The Honourable learned trial magistrate erred in law and fact to hold that **Kisumu/Nyahera/533** had not been declared a free property and therefore the title he was holding was acquired illegally and unprocedurally. 6. The Honourable learned trial magistrate erred in law and fact to hold that even though interested party did not obtain a Land Control Board consent than the Agreement between her and the vendor could not be vitiated thus it was proper to impose constructive Trust on the property against the Appellant. 7. The Honourable learned trial magistrate erred in law and fact to hold that the appellant herein was holding the suit property by an implied trust in whatsoever manner whereas the vendor of the suit property was not a party to the proceedings thus arriving at a wrong decision cumulative to miscarriage of justice. 8. The weight of the evidence at the trial is totally against the judgment upheld against the Appellant. 9. Upon admission of the Appeal parties took direction to dispose the Appeal by way of written submissions. **Appellants Submissions** 1. In respect of the 6 grounds of Appeal, the Appellant consolidated the same and submitted on them under two limbs; evidence and the law 2. The Appellant submits that as per pages 130 134 of the Record of Appeal, the Interested party had not taken possession of the suit property, but was staying far off. That Walter Agengo had given a portion to Barnabas under succession; thus, no evidence was tendered to support occupation by the defendant and the interested party. 3. The Appellant submits that the suit property had been transmitted to the Appellant vide a Grant issued by the court, which Grant remains. 4. The Appellant submits that no implied Trust could operate in favour of the Respondents as there was no evidence of purchase and the Grant was not revoked. 5. On the strength of the above submissions the Appellant through their Counsel **Messrs D.O.E Anyul Advocates** sought for the Appeal to be allowed. **Respondents’ Submission** 1. On behalf of the Respondents, **Messrs Cheruiyot Melly & Co. Advocates** argued the Appeal vide their written submissions. 2. At outset the Respondent’s submit that the Memorandum of Appeal has sought no reliefs. 3. The Respondents submit that the 2nd Respondent placed the 1st Respondent in occupation of the suit land pursuant to an Agreement for sale and that Walter Bonga Agengo deliberately excluded the 2nd Respondent despite knowledge that she had purchased a portion of 1 acre in the original parcel aforementioned. 4. The Respondents have framed and submitted on 4 issues for determination: - 5. On issue no. 1, the Respondent submit that the Appellant included in the record of Appeal documents that were not part of Record of the trial court, the said documents are found at pages 5 to 58 of Record of Appeal which ought to be expunged so submit the Respondents. 6. The Respondent submit that a number of documents were marked for identification but were not produced at the trial court and would have no evidential value before the trial court, and they cite the decision in **Kenneth Nyaga Mwige vs Austin Kiguta & Others NRB C.A. No.140 of 2008 [2015] e KLR.** 7. The Respondent submit that the Appellant did not show how he acquired the whole of **Kisumu/Nyahera/533**, yet he only purchased a portion thereof, yet the 2nd Respondent had purchased 1 acre from the original owner, Barnabas Okore. 8. That the 2nd Respondents purchase was first before the Appellants. The Respondents cited the decision in the case of **Maina & 87 Others vs Kagiri [Civil Appeal 6, 26 & 27 of 2011] 2014 [KELA] 880 as well as Mwangi & another vs Mwang**i to buttress the point that the occupation of land pursuant to a purchase form on trust on the land. On the issue of lack of consent, the Respondent placed reliance on the issue of Constructive trust. 9. On the strength of the above submissions, the Respondent sought for the Appeal to be dismissed. **Issues for determination** 1. Having analysed the Record of Appeal, the submissions and considered the law the court frames the following as issues for determination: - 2. Whether or not the Appeal is merited and in deciding this, the court shall decide which between the plaintiff’s suit and the defendants’ defence before the trial court was merited. 3. What reliefs ought to issue. 4. Who bears the costs of the Appeal. **Analysis and determination** 1. As a first Appellate court, this court is required to “***reconsider the evidence, evaluate it and draw its own conclusion”*** as stated in **Selle and Another Vs. Associated Motor Boat Limited and 3 Others.** 2. In exercise of the said duties the court has reviewed the plaint before the trial court where the Appellant herein was the plaintiff and had averred *interalia*; 3. That he was the registered proprietor of all that parcels of Land known as **Kisumu/Nyahera/2837** and **Kisumu/Nyahera/2838** having purchased the said parcels, which were hired off **Kisumu/Nyahera/533**, from Walter Bonga Agengo pursuant to a certificate of confirmation of Grant in respect of the original deceased proprietor, the late Barnabas Agengo Okore. 4. That of three subdivisions of **Kisumu/Nyahera/533**, he transferred **Kisumu/Nyahera/2838** to Caroline Atieno Agengo and retained the two parcels where upon the defendant without any colour of right barred him from accessing and use of the parcels Kisumu 2837 and 2839 destroying vegetation and cultivating thereon. 5. The plaintiff sought a permanent injunction against the Defendant as against parcel numbers 2837 and 2839 and eviction of the defendant. 6. The 1st Respondent was the Defendant before the trial court and vide defence dated 20the of August 2019 wherein he denied knowledge of registration of the plaintiff as the owner of **Kisumu/Nyahera/2837** and **Kisumu/ Nyahera/2839**, averring that he had been on suit parcel from 2006 pursuant to authority from one Mary Carren Obonyo, a purchaser who had bought the same from the deceased proprietor Barnabas Okore, he denied that the Plaintiff had any cause of action. 7. The 2nd Respondent was joined in the suit before the trial court as an interested party and filed her defence and counter claim claiming that 8. she purchased one acre from the deceased proprietor within **Kisumu/Nyahera/533** and upon the demise of the deceased proprietor, the probate proceedings excluded her, hence the subdivision of **Kisumu/Nyahera/533** into the 3 parcels without taking her interest as a purchaser were a nullity she pleaded particulars of illegally and/or irregularly. 9. The Interested part sought for declaration as ownership if 1 acre within **Kisumu/Nyahera/533**. 10. Order for cancellation of the resultant titles after subdivision, 11. Order directing Lands Registrar & County Surveyor to subdivide **Kisumu/Nyahera/533** and live out her 1 acre. 12. The suit proceeded for hearing and witnesses testified and the trial court rendered its judgment, the learned magistrate found that there was a sale between the late Barnabas Okore and Mary Carren which sale was completed after the demise of the late Barnabas, and that Mary Carren Okore was put in possession of the suit land, and the court thus found the existence of a constructive Trust in favour of the Interested party and that the non-issuance of the LCB consent did not vitiate the said sale and the court declared that the plaintiff held title in Trust for the Interested party to the extent of one acre, either in **Kisumu/Nyahera/2837** or **Kisumu/Nyahera/2839** and if dismissed the suit plaintiffs suit provoking this Appeal. 13. Having given a background of the pleadings and the judgment of the trial court, the court shall now determine whether or not the plaintiff’s suit was merited. 14. The gravaman of the plaintiff’s suit before trial court was that he was the registered owner of the two subdivisions which he purchased pursuant to certificate of confirmation of grant that had been issued to Walter Bonga Agengo. 15. While the defendant stated that he had been permitted by the interested party to occupy the portion of the suit properly having purchased the same from the deceased original owner, the late Barnabas Agengo. 16. Mr. Walter Agengo testified in the as D.W.1 [wrongly referred to as P.W] his testimony appears at pages 128-129 of the Record of Appeal. His produced a document Dexs, in which it details and acknowledges the sale between Carren Obongo and his late father. 17. The court finds that before his death the late Barnabas Agengo had divested his interest in one acre of **Kisumu/Nyahera/533** by way of a sale to Mary Carren Obongo, who took possession thereof and licenced the defendant to use the same, thus a constructive trust was created in favour of Mary Carren Obongo and she had the necessary proprietary interests therein to allow the defendant to occupy the same, and that the plaintiff’s case of trespass in that regard was not founded. 18. In arriving at the said finding. I am guided by the decision in **Macharia –Mwangi Maina & 81 Others Vs Kagiri & others** where the Court of Appeal in respect if a Constructive Trust observed as follows: - ***“The totality of our re-evaluation of the facts and applicable law in this case leads us to conclude that the Honourable Judge erred in failing to consider that the Appellants were in possession of the suit property, that the Respondent had created a Constructive trust in favour of all individuals who had paid the purchaser price for the respective plots and the trial court erred in failing to note that the consent of the Land Control Board is not required where a trust is created in Agricultural land”*** 1. In the same **Macharia Mwangi** decision, the issue of lack of LCB consent vitiating a sale Agreement was settled therein and the same has been followed in other Court of Appeals decisions including **Willy Kimutai Kitilit Vs. Michael Kibet** where the court at paragraph 26 of the said decision observed as follows:- ***“for the reasons in paragraph 20,21, 22, 23, & 25 above, we are in Agreement with the Macharia Mwangi Maina decision that the equitable doctrines of constructive Trust and Proprietary estoppel are applicable and enforceable to land subject of the Land Control Act, thought this is subject to the circumstances of a particular case upon the applicable of the equitable doctrines the court in its discretion may either award damages and were damages are inadequate remedy grant the equitable remedy of specific performance…”*** 1. The Learned Trial Magistrate therefore reached the correct finding that a Constructive Trust existed on the portion sold to May Carren Obongo by the original owner and having found that Constructive Trust existed, the issue of the Agreement for sale being viated for lack of Land Control Board consent did not arise. 2. In granting the reliefs as he did the Learned Trial Magistrate was aware of the scope of jurisdiction of the succession court as he stated at paragraph 45 of the judgment and indeed this interplay of scope of jurisdiction of ELC and succession court were determined in the decision in the case of **Disaproperty limited and 10 Others** **Vs Gitae Civil Appeal No.E135/2023** as consolidated with **Civil Appeal No.157/2023]** where the Court of Appeal affirmed that the ELC would have jurisdiction to determine ownership of disputes claims by third parties before and after the distribution of a deceased Estate. 3. At paragraph 39 -40 the Court of Appeal in the above decisions held as follows: - ***“39 We have considered the Agreement in the first place, when the 3rd appellant approached the succession Court, he did not notify the Respondent.*** ***On the evidence, it is clear to as that he knew of the Respondent’s claim to the land based on the sale Agreement with the deceased.*** ***Even assuming that he did not know he went to the succession court on the basis that the suit property was the free property of the deceased. It turns out that was not the case. Given if the Respondent had become aware that the 3rd appellant had filed the succession cause, what would have been open to him would have been to lodge a claim in the cause as a creditor to the estate of the deceased.*** ***And since his claim was disputed by the 3rd Appellant and his siblings, the succession court would have had no jurisdiction to hear and determine the claim. It would have asked the Respondent to file a suit in the Environment and Land Court to have the claim determined there. In the meantime, it would have adjourned the confirmation of the grant to allow for such determination. The result of such determination would have then formed the basis for distribution of the Estate of the deceased to the beneficiaries. As matters stand, we find that procedure was not followed owing to the fact that the 3rd Appellant concealed the fact of the succession proceedings from the Respondent. But now, the Environment and Land Court has determined that the deceased held the 200 acres in trust for the Respondent.*** ***40. For good measure, the Environment and Land court, has deferred to the jurisdiction of the High court in the succession cause and that is why it has asked the Respondent to take the determination of that court in an application for revocation under section 76 of the law of succession because clearly, as we have found in upholding the decision of the Learned Judge, there was material non-disclosure and concealment of the true ownership of the suit property when the list of properties that belong to the Estate of the deceased was preserved to the succession court to have the deceased estate redistributed in accordance with the determination.”*** 1. Thus, in answer to issue No. 1 the court fins that the plaintiff’s suit before the trial court lacks merit and the Defendants interested party case was merited. 2. It follows therefrom that the Appeal herein equally lacks merit, most of its grounds having failed. 3. On issue No. 2, having found that the Appeal lacks merit, the same is hereby dismissed with costs of the Appeal and costs in the trial court being awarded to the Respondents. 4. For avoidance of doubt the Judgment of Hon. E. Mwenda PM in Kisumu CM ELC No. 90/2019 is upheld in its entirety. Dated at Kilgoris this 16th day of July 2026 Hon. M.N. Mwanyale Judge **In the presence of** CA – Sylvia/Clara Mr. Kiprono for Respondents Mr. Anyul for Appellant