https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/424

 **REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE'S COURT AT MAKINDU** **ENVIRONMENT AND LAND CASE NO 48 OF 2013** **PETER NGILE MASILA…..........................................................................................PLAINTIFF** **VERSUS** **MARY CHEPKEMBOI MUTHOKA (Legal representative of the estate of MESHACK MUTHOKA a.k.a SAMSON MUTHOKA MUSYIMI-DECEASED.................................................DEFENDANT** **AND** **SAMMY NGILE MASILA.....................................................................................THIRD PARTY** **JUDGMENT** **INTRODUCTION** Disputes of this nature are regrettably common in this jurisdiction, particularly in relation to land that was historically held under customary arrangements and only later subjected to adjudication and registration. The transition from customary tenure to statutory registration has, in many instances, generated competing claims between registered proprietors and persons asserting beneficial interests founded upon family, clan or customary trusts. The difficulty of resolving such disputes is often compounded by deficiencies in land records, missing or incomplete adjudication documents, and the failure by some land administration offices to maintain accurate and readily accessible records. In certain cases, the absence of crucial records or satisfactory explanations from officers charged with the custody of land documents leaves the court with the unenviable task of reconstructing historical events from oral testimony and fragmented documentary evidence. Such circumstances not only prolong litigation but also impede the court's ability to ascertain the true facts with the degree of certainty that land disputes demand. This dispute concerns ownership of parcels of land which, prior to the adjudication and registration process, existed as unadjudicated land. Following the adjudication process, the suit properties were registered in the name of the plaintiff, who contends that he bought the parcels of land and that such registration conferred upon him absolute ownership. The defendant and third party, however, dispute that claim and maintain that the plaintiff was registered as proprietor to hold the land in trust for the third party. The court is therefore called upon to determine*, inter alia,* whether the plaintiff holds an indefeasible title to the suit property or whether the registration was subject to a customary or resulting trust in favour of the third party. **THE CLAIM** Peter Ngile Masila (hereinafter referred to as the plaintiff) filed this suit on 22/3/2013 vide a plaint dated the same day. He sued Meshack Muthoka (now deceased) alleging trespass by the defendant on land parcels numbers Makueni/Kiou/1404 and Makueni/Kiou/134. The plaintiff averred that he was the registered owner of the two parcels of land having purchased them in the year 1997 and was in possession of the same. The plaintiff further averred that on or about 19/3/2013 the defendant and his agents trespassed onto the two parcels of land and ploughed the same using a tractor and were desirous of planting crops thereon without the consent of the plaintiff. The plaintiff thus claims for the following reliefs as against the defendant: 1. A permanent injunction restraining the defendant and his agents from trespassing, alienating, ploughing or using the suit property in any manner that interferes with plaintiff’s rights of ownership; 2. Costs of the suit. **THE DEFENCE** The defendant (deceased) filed a notice of appointment of advocate on and memorandum of appearance on 3/4/2013. The statement of defence and counter-claim was filed on 10/2/2014 after interlocutory judgment against the defendant was set aside. The defendant denied that the plaintiff was the owner of the suit parcels of land and denied that the plaintiff bought the parcels of land as was alleged in the plaint. The defendant averred that he was the bona fide purchaser of the suit parcels of land, having bought them from one Sammy Ngile in the year 2006. That the plaintiff wrongfully and fraudulently got the suit land registered in his name even when he was aware that it did not belong to him. The defendant pleaded the following particulars of fraud: 1. Registering the land in his name secretly even when he knew that the same did not belong to him but his brother one Sammy Ngile; 2. Registering the land in his name even when he knew that the said Sammy Ngile had sold the same to the defendant and the defendant in turn re-sold parcel number Makueni/Kiou/134 to a third party with the encouragement of the plaintiff in a transaction witnessed by the plaintiff; 3. Registering the suit land in his name while fully aware that it did not belong to him and when he had given evidence in judicial proceedings in criminal case number 767 of 2009 Makindu, confirming that the land belonged to one Sammy Ngile and the latter had sold the same to the defendant. The defendant averred that the suit was an abuse of the process of the court as the plaintiff had filed a similar suit being PMCC No. 47 of 2007 against Sammy Ngile, which suit was dismissed and the matter was *res judicata*. In the counter-claim, the defendant reiterated the contents of his defence and averred that the plaintiff unlawfully and deliberately entered into the suit land sometimes in March and April, 2013 and maliciously uprooted and destroyed the defendant’s crops worth Ksh. 9,42,800/=. That the registration of the suit property in the plaintiff’s name was obtained by deceit and fraud and the same is unlawful. The defendant prayed for the plaintiff’s suit to be dismissed with costs and judgment be entered in favour of the defendant against the plaintiff for: 1. A declaration that the registration of the suit parcels of land Makueni/Kiou/1404, Makueni/Kiou/153 and Makueni/Kiou/134 in the plaintiff’s name was unlawful and fraudulent; 2. Cancellation of the said title documents for fraud and issue of title in the plaintiff’s name (ought to have been defendant’s name); 3. Costs of the suit. **THE THIRD PARTY** On 27/10/2014 the defendant filed an application to join a third party. The application was allowed and upon service of the third party notice and pleadings, the Third party entered appearance on 7/4/2015 and filed a statement of defence on the same day. The third party denied that the plaintiff was the registered owner of the suit parcels of land and averred that even if the plaintiff was registered, then the plaintiff fraudulently and in contravention of a family agreement of 6/8/2007, registered the said parcels of land in his name, thereby depriving the third party his rightfully owned parcels of land. The third party pleaded the following particulars of fraud and breach of family agreement: 1. Registering the said parcels of land in his name whilst aware that the said parcels of land belonged to the third party; 2. Concealing to the adjudication officer that the said parcels of land belonged to him whilst he was well aware that the same had been allocated to the third party; 3. Breaching a family trust bestowed on him by the third party and the family of Ngile. The third party averred that the plaintiff was his brother and that all of them worked in a family business where they used the profits raised in acquiring land and other properties. That the plaintiff being the first born was registered on all the parcels of land as a trustee of the third party under the Kamba customs. The third party further averred that the plaintiff breached their mutual trust when he failed to register the third party on the parcels of land which were allocated to him and later attempted to evict the third party but the dispute was arbitrated in a family meeting before the District Officer at Kasikeu Division and elders on 6/8/2007 and it was agreed that the third party would get land parcel numbers Makueni/Koiu/1404 and Makueni/Kiou/134 as well as plot No. 8 Kiou, among others. The third party averred that he sold land parcel number Makueni/Kiou/1404 and Makueni/Kiou/134 to the defendant who has been in occupation and that the plaintiff was even a witness and one of the elders who planted sisal to demarcate the boundaries when the defendant purchased the said parcels of land. That the plaintiff is therefore estopped from claiming them. The third party further averred that the plaintiff had sued him in Makindu PMCC No. 47 of 2007 which was dismissed and later the plaintiff instituted Criminal case No. 767 of 2009 at Makindu, in which the plaintiff admitted on oath that he held the various parcels of land in trust for the third party and his brother. The third party denied that the defendant trespassed on the suit parcels of land and averred that the defendant was lawfully on the parcels of land, having purchased them from the third party. The third party urged the court to dismiss the plaintiff’s suit with costs to the defendant and to him. **PLAINTIFF’S REPLY TO THIRD PARTY DEFENCE** The plaintiff filed a reply to the third party’s defence in which he reiterated the contents of the plaint. He denied the allegations of fraud and breach of a family agreement and averred that the alleged family agreement was a document manufactured by the third party. The plaintiff maintained that he bought the suit parcels of land with his own money and denied having any family business with the third party. The plaintiff prayed for similar orders as against the third party. **THE EVIDENCE** The matter was substantially heard by other Magistrates who were subsequently transferred. I took over the matter after the plaintiff’s and defendant’s cases had been closed and the third party’s case had been partly heard. I only heard the third party’s last witness. The record indicates that the parties agreed, and the court directed that the issues between the plaintiff, the defendant and the third party be canvassed simultaneously. ***The plaintiff’s Case.*** At the hearing of the suit, the plaintiff testified and called two other witnesses in support of his case. PW 1 Augustine Mbuvi Mwania adopted his statement filed in court as part of his testimony. The witness stated that on 30/9/1997 he prepared an agreement and acted as a witness to a sale of land transaction between the plaintiff and one Kamuyu Malungui (deceased) in which the deceased sold 9 and ¼ acres of land to the plaintiff at a consideration of Ksh. 315,000/=. That the payment was made in instalments. PW 1 testified that the land was later surveyed and registered as Makueni/Kiou/1404. PW 2 Titus Ngile Masila testified that the plaintiff and the third party were his brothers. His evidence was that the plaintiff bought a parcel of land, which the defendant later tried to buy from the third party. The witness stated that the land did not belong to their father and that the suit parcels of land were not ancestral land. PW 3 was the plaintiff himself. He adopted his statement filed in court as part of his testimony. The plaintiff stated that the suit parcels of land belonged to him as he bought them from different persons in 1990 and 1997. He denied that the suit parcels of land were ancestral. The plaintiff produced copies of the title deeds in his name as well as the sale of land agreements. ***The Defence Case*** Only the defendant testified in support of his case. His testimony was that he bought land parcels numbers Makueni/Kiou/1404, Makueni/Kiou/153 and Makueni/Kiou/134 from the third party before they were surveyed and registered. That this was in 2006. The defendant produced documents in support of his case. The defendant stated that the plaintiff knew that he had bought the parcels of land and even showed him the boundary. ***The Third Party’s Case*** The third party testified as the first witness in support of his case. He adopted his statement filed in court as part of his testimony. The third party testified that land parcels numbers Makueni/Kiou/1404, 134 and 153 were acquired through a partnership comprising of the plaintiff, Titus Ngile and the third party, who are siblings. That the parcels of land were registered in the name of the plaintiff who was to hold in trust for the third party. The third party stated that the parcels of land belonged to him and that he had sold them to the defendant herein. Joseph Mutua Muasya testified on behalf of the third party. His testimony was that he was a village elder. That in 2007, the plaintiff lodged a complaint at the office of the District officer seeking to have the third party vacate land parcel number 2625 which was their ancestral land. The witness stated that a meeting was held on 6/8/2007 and it was agreed that the third party would vacate the ancestral land and move to parcel numbers Makueni/ Kiou/ 1404, 153 and 134. That the plaintiff and PW 2 would construct a house for the third party. The witness stated that the suit parcels of land belonged to the third party. **FACTS NOT IN DISPUTE** From the evidence of both parties, the following facts are not in dispute: 1. That the plaintiff is the registered proprietor of land parcel numbers Makueni/Kiou/1404, Makueni/Kiou/153 and Makueni/Kiou/134; 2. That the above parcels of land are not ancestral but were purchased. **MAIN ISSUES OR QUESTIONS FOR DETERMINATION** Having considered the pleadings and the evidence on record, I find that the main issues for determination are as follows: 1. Whether the plaintiff’s suit is res judicata; 2. Who is the rightful owner of land parcel numbers Makueni/Kiou/1404, Makueni/Kiou/153 and Makueni/Kiou/134? 3. Whether the plaintiff fraudulently caused the suit parcels of land to be registered in his name? 4. Whether the plaintiff holds the parcels of land in trust for the third party; 5. Whether the defendant trespassed on the suit parcels of land; 6. Whether the defendant ought to be permanently restrained from the land; 7. Whether the defendant and third party have any remedy as against the plaintiff; 8. Who should bear the costs of the suit? **THE PLAINTIFF'S SUBMISSIONS** The plaintiff relied on his evidence on record and submitted that the third party had not proven existence of a customary trust in the suit properties. That the allegation that the suit parcels of land were ancestral was an afterthought since the prior objection that the third party had lodged at the office of the District Land Adjudication officer was that ownership of the land was based on business partnership. The plaintiff further submitted that there was no evidence to show that the suit parcels of land were bought from proceeds of family business or business partnership. The plaintiff argued that in the circumstances, the third party had no proprietary rights over the suit parcels of land and as such, he could not have capacity to sell them to the defendant. That the agreement executed between the defendant and the third party did not confer any proprietary rights to the former. It was submitted on behalf of the plaintiff that the defendant cannot be termed as a bona fide purchaser for value as he did not conduct due diligence before purchasing the land from the third party. The plaintiff contended that there was no fraud in the issuance of the title deeds to him. That he bought the parcels of land before survey was done and thereafter, titles were issued in his name. The plaintiff argued that the suit was not *res judicata* on account of the criminal proceedings. That no other proceedings were produced in evidence to prove that the suit was *res judicata*. The plaintiff urged the court to dismiss the counter-claim and allow his suit with costs. The plaintiff relied on the following authorities: 1. Njeru v Ndungu alias Angelica Wangui Njuguna & 3 others [2025] KEELC 1059 (KLR); 2. Kemboi v Macharia & 2 others [2025] KECA 1665 (KLR); 3. Njinu v Orkesi & 5 others; Tumpes (Interested party) [2024] KEELC 3765 (KLR). **THE DEFENDANT’S SUBMISSIONS** The defendant invoked sections 25 and 28 of the Land Registration Act and relied on the evidence of the third party. He submitted that the parcels of land were registered in the name of the plaintiff by virtue of Kamba customs. He urged the court to dismiss the plaintiff’s suit and allow the counter-claim with costs. **THE THIRD PARTY’S SUBMISSIONS** The third party submitted that there was a long standing family land disagreement which the plaintiff now seeks to repackage into a legal claim against the defendant. That what is before the Court is not a case of unlawful intrusion, but an attempt to dislodge an occupation that has existed openly, peacefully, and with the plaintiff's knowledge for years. The third party argued that the plaintiff deliberately omitted the factual history surrounding the suit land that he was registered in trust of his brothers as the eldest as per customary culture. The third party contended that the dispute originates from a family arrangement involving the plaintiff and his brothers amongst them the 3rd party. The third party submitted that the dispute was resolved through the local administration and the third party was placed in possession of the suit parcels of land. That the defendant entered the land through the third party and has since remained in open, peaceful, and continuous occupation. The third party argued that the plaintiff took no timely steps to challenge this occupation and only filed suit years later, after the factual position had crystallized. The third party contended that the present suit is therefore an afterthought aimed at undoing a settled reality. The third party argued that the plaintiff had failed to prove the essential elements of trespass. That he failed to prove that he was in possession of the land and that occupation under a colour of right cannot be treated as trespass. That the plaintiff has also failed to demonstrate any act of unlawful intrusion or interference and as such, his claim is therefore unsupported and unsustainable. It was argued that the plaintiff’s conduct bars him from claiming trespass. By allowing the third party and subsequently the defendant to occupy the land without objection for years, the plaintiff created a situation upon which the defendant relied. That the plaintiff's prolonged inaction amounts to acquiescence. He cannot, now reverse his position and seek eviction. The defendant argued that while registration confers ownership, it is subject to overriding interests, including trusts. That the circumstances of this case reveal a family arrangement in which the 3rd Party had a beneficial interest in the land. The third party submitted that the suit was *res judicata* as the land dispute was determined as between the plaintiff and the third party in 2007. The third party urged the court to dismiss the plaintiff’s suit with costs. **ANALYSIS AND DETERMINATION** I have considered the evidence on record. It is trite law that it is not enough to adorn the plaint with allegations. The plaintiff must adduce evidence to prove such allegations and it is from the evidence that the court can make a finding on the claim. The above position appears to be anchored on the provisions of sections 107 and 109 of the Evidence Act which basically provide that the burden of proof lies on the person who alleges the existence of facts upon which he desires the court to give judgment in his favour. In the case of ***Kirugi & Another v Kabiya & 3 Others [1987] KLR 347***, the Court of Appeal held thus: ***“The burden was always on the plaintiff to prove his case on the balance of probabilities even if the case was heard on formal proof.”*** I will address the issue of res judicata first. The issue was raised by the third party in his defence. He alleged that the plaintiff sued him vide Makindu PMCC NO. 47 of 2007, which was dismissed and later the 3rd party was charged vide Criminal case No. 767 of 2009 at Makindu. To begin with, the issue of res judicata does not arise as between a civil and criminal case. As for the civil case, no proceedings nor judgment was produced in evidence. As such, the court is not in a position to know what the civil case was all about as well as the decision of the court. There is no material upon which the court can make a finding that the present suit is res judicata. In his submissions, the third party referred to a resolution by the local administration. There is a verdict by District Officer Kasikeu Division dated 6/8/2007. The verdict was in respect of a land dispute between the plaintiff and the third party. The verdict indicates that the parties agreed that the third party would occupy an alternative land at Muani and that the plaintiff together with their other brother would construct a house for the third party on the alternative land. From the verdict, the description of the alternative land is not clear but there are handwritten notes indicating 134-153-1404 P/D No. 8. When the third party was cross-examined by counsel for the plaintiff, he admitted that the writings aforementioned were made by him. In essence, the third party altered a document that was authored by the District officer. There is also a copy of proceedings and findings of the District Land Adjudication and Settlement officer, Kibwezi. The proceedings were in respect of a land dispute between the third party and the plaintiff herein, and others. The proceedings are dated 12/1/2015 and a careful perusal of the same indicates that the suit parcels of land herein were subject of the proceedings, or at least parcel No. 134. In the proceedings, the third party had raised objections on the same grounds as in this suit. The Land Adjudication and Settlement officer dismissed the objections. There is no indication that the third party lodged an appeal from the decision of the Land Adjudication and Settlement officer. It would appear that the appeal is being lodged vide the instant suit. Section 7 of the Civil Procedure Act provides: ***"No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court."*** In my view, the elements of *Res Judicata* are as follows: 1. Same matter in issue. The issue in the subsequent suit must be directly and substantially the same as the issue in the former suit. 1. Same parties or parties claiming under them. The former and subsequent suits must involve the same parties, or parties litigating under the same title (e.g., successors, representatives, agents). 1. Same title/capacity. The parties must have litigated in the same legal capacity in both suits (e.g., as owner, administrator, trustee, etc.). 1. Matter finally determined. The issue must have been heard and finally decided in the previous suit and not pending, withdrawn without determination, or struck out on a technicality (unless the strike-out finally disposed of the issue). 1. Competent Court. The previous decision must have been made by a court with proper jurisdiction over the subject matter and the parties. 1. Direct and substantial issue. The issue must not be merely incidental or collateral; it must have been essential to the earlier judgment. My view is buttressed by the Supreme Court of Kenya in the authority of ***John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR)***, wherein the court held that for *res judicata* to be invoked in a civil matter the following elements had to be demonstrated: * there was a former judgment or order which was final; * the judgment or order was on merit; * the judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and * there had to be between the first and the second action identical parties, subject matter and cause of action. Clearly, this suit does not sit on all fours with regard to *res judicata*. It must be remembered that the plaintiff sued the defendant and not the third party. There is no evidence to show that there is a previous suit between the plaintiff and the defendant over the same subject matter and issues and which suit was heard by a competent court and finally determined. The plea of *res judicata* holds no ground and is thus dismissed. It is not in dispute that the plaintiff is the registered proprietor of the suit parcels of land. The plaintiff alleges that he bought the suit parcels of land from proceeds of his business. The plaintiff produced in evidence sale of land agreements dated 12/1/1990 and 30/9/1997. The agreements do not indicate the parcel numbers as the same were executed before adjudication was done. The third party agrees that the suit parcels of land were bought from proceeds of a business. He claimed that the business was jointly owned by himself and the two brothers. PW 2 Tutus Ngile Masila, who is said to have been one of the joint owners of the business disputed that it was a family business. He stated that the business belonged to the plaintiff. PW 2 further stated that the suit parcels of land were bought by the plaintiff and were not ancestral or family land. The plaintiff was registered as proprietor of the suit parcels of land on 11/4/2011. The registration was done under the Registered Land Act (now repealed). It was a first registration. Section 27(a) of the Registered Land Act (repealed) provided that subject to the Act, interest conferred by 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 28 of the repealed Act provided as follows: ***“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; and*** ***(b) 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:*** ***Provided that nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which he is subject as a trustee.”*** Section 30 of the Registered Land Act (now repealed) provided in part that: ***“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 –*** ***(f) rights acquired or in process of being acquired by virtue of any written law relating to the limitation of actions or by prescription;*** ***(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.”*** The Land Registration Act that came into force on 2/5/2012 contains similar provisions as in sections 27 and 28. In the current Act, they are under sections 24 and 25. Section 26(1) of the Land Registration Act provides: ***“The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor 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, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—*** 1. ***on the ground of fraud or misrepresentation to which the person is proved to be a party; or*** 2. ***where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”*** According to section 28 of the Land Registration Act, trusts, including customary trusts are overriding interests on registered land, and need not be noted in the register. A customary trust in land is a legal doctrine where land that is formally registered in one person's name is nevertheless held for the benefit of other family, clan, or community members according to customary law and traditions. Key features include: 1. **Origin in customary law:** The trust arises from traditional practices and family or communal arrangements rather than a written trust document; 2. **Registered owner as trustee:** The person whose name appears on the title may be considered to hold the land on behalf of other beneficiaries; 3. **Beneficiaries' rights:** Family or community members may have enforceable interests in the land even though they are not listed on the title; 4. **Proof required:** A person claiming a customary trust usually must show factors such as family relationship, historical occupation, ancestral ownership, or customary expectations regarding the land. For instance, if ancestral land is registered in the name of the eldest son after a land adjudication process, but customary law regards the land as belonging to the wider family, a court may find that the son holds the land in customary trust for other family members. In the authority of ***Kiebia v M’lintari & another [2018] KESC 22 (KLR)***,the Supreme Court of Kenya made the following findings: 1. A customary trust, as long as the same could be proved to subsist, upon a first registration, was one of the trusts to which a registered proprietor was subject under the proviso to section 28 of the Registered Land Act(repealed). Under that legal regime, the content of such a trust could take several forms. For example, it could emerge through evidence that part of the land 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 youth graduating into manhood. The categories of a customary trust were therefore not closed. It was for the court to make a determination on the basis of evidence as to which category of such a trust subsisted as to bind the registered proprietor; 2. Each case had to be determined on its own merits and quality of evidence. It is not every claim of a right to land that would qualify as a customary trust. In that regard, what was essential was the nature of the holding of the land and intention of the parties. If the holding was 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 were in possession or actual occupation of the land; 3. Some of the elements that would qualify a claimant as a trustee were: 4. The land in question was before registration, family, clan or group land; 5. The claimant belonged to such family, clan, or group; 6. The relationship of the claimant to such family, clan or group was not so remote or tenuous as to make his/her claim idle or adventurous; 7. The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances. 8. Customary trusts as well as all other trusts were overriding interests under the repealed Registered Land Act. Those trusts being overriding interests were not required to be noted in the register. On the other hand, a constructive trust in land is a legal relationship where a person who holds the legal title to land is treated by a court as holding it for the benefit of another person, even though there may be no formal trust document. It is imposed by law to prevent unjust enrichment, fraud, unconscionable conduct, or to give effect to equitable rights. The registered owner may be the legal owner, but the law may recognize that another person has a beneficial interest in the land. Constructive trusts arise mainly through equity and are recognized under Kenyan land law. They are particularly relevant where land is registered in one person's name but circumstances show that another person has an equitable claim. Instances where a constructive trust may arise are: 1. Family land / contribution * A person registers land in his name, but another person contributed money, labour, or resources towards acquiring or developing the land. The court may find that the registered owner holds the land partly for the benefit of the contributor. 2. Fraud or unconscionable acquisition * A person obtains registration of land through circumstances where it would be unfair to allow them to keep the benefit. The court may impose a constructive trust. 3. Promise or agreement leading to reliance * A person is induced to act (for example, develop land or surrender rights) based on an understanding that they will receive an interest in the land. In such a case, equity may intervene. A claimant alleging constructive trust usually must show facts such as: 1. The other person obtained or holds the legal title; 2. there was a relationship, agreement, contribution, or conduct creating an equitable obligation; 3. it would be unjust for the registered owner to keep the land without recognizing the claimant’s interest. A constructive trust is therefore not automatic merely because someone helped develop land or had an expectation; the circumstances must justify the court imposing that equitable remedy. In the authority of ***Maina & 87 others v Kagiri [2014] KECA 880 (KLR)***, the Court of Appeal observed that a constructive trust is based on “common intention” which is an agreement, arrangement or understanding actually reached between the parties and relied on and acted on by the Claimant. That constructive trust is an equitable concept which acts on the conscience of the legal owner to prevent him from acting in an unconscionable manner by defeating the common intention. Lord Reid in ***Steadman v Steadman (1976) AC 536, 540*** held that: ***“If one party to an agreement stands by and lets the other party incur expense or prejudice his position on the faith of the agreement being valid he will not then be allowed to turn around and assert that the agreement is unenforceable”.*** Lord Denning in ***Hussey v Palmer (1972) 3 All ER 744*** held that a constructive trust is a trust imposed by law whenever justice and good conscience require it. It is an equitable remedy by which the Court can enable an aggrieved party to obtain restitution. In the authority of **Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others [2023] KESC 106 (KLR)**, the Supreme Court of Kenya held that: 1. While sections 25, 26, and 28 of the Land Registration Act established that the rights of a registered proprietor of land were absolute and indefeasible, those rights were subject to the encumbrances recorded in the register and overriding interests, including trusts. Furthermore, in the absence of limitations on trusts, constructive trusts are also included. Consequently, under article 24 of the Constitution, the limitation of property rights is legally defined and encompassed constructive trusts; 2. Constructive trusts could arise in various circumstances, including in land sale agreements. A trust is an equitable remedy which is an intervention against unconscionable conduct. Where the circumstances of the case were such that it would demand that equity treated the legal owner as a trustee, the law would impose a trust. It is imposed by law whenever justice and good conscience required it. A constructive trust could be imported into a land sale agreement to defeat a registered title. As already pointed out, the suit parcels of land are not ancestral land. They did not belong to the family of the plaintiff and the third party. It is agreed by both parties that the suit parcels of land were bought. In the circumstances, it is my considered view that a customary trust does not arise. Is the concept of constructive trust applicable? The defendant and third party appear not to be certain of what their real position is in respect of the suit parcels of land. On one hand, they alleged that the land was registered in the name of the plaintiff according to Kamba customs because he was the first born in the family. On the other hand, they claimed that the plaintiff fraudulently caused his name to be registered as proprietor of the suit parcels of land. In his evidence in-chief, the 3rd party stated as follows: ***“Before survey, the land belonged to the plaintiff, myself and Titus Ngile. When the survey was done, we agreed the plaintiff be registered as our trustee.”*** If there was an agreement between the brothers that the plaintiff be registered as proprietor to hold in trust for himself and others, it would be improper for the defendant and third party to turn around and claim that the plaintiff’s registration was fraudulent. The defendant and the third party cannot take two different positions and expect the court to choose which position fits. The position of the third party is more confusing. He claimed that the parcels of land were bought in partnership with the plaintiff and PW 2 who is their brother. At the same time, he claimed that the parcels of land belonged to him exclusively. If at all the parcels of land were bought in partnership, why would he be the sole owner of the parcels of land? It would have made sense to me if she claimed a share but claiming all the parcels of land creates more confusion. The issue of the family business was disputed by PW 2 who was said to be a partner. The third party did not even disclose the nature of the family business that they were doing. If indeed the parcels of land were bought for the benefit of the three brothers, I find it strange that neither PW 2 nor the third party were present when the parcels of land were being bought. They do not feature anywhere in the sale agreements. Both the defendant and third party pleaded particulars of fraud as against the plaintiff. In the authority of ***Fanikiwa Limited & 3 others v Sirikwa Squatters Group & 17 others [2023] KESC 105 (KLR)***, the Supreme Court of Kenya held that fraud and conspiracy to defraud are very serious allegations. That the onus of *prima face* proof is much heavier than in an ordinary civil case. The court further observed that where fraud is alleged, it must be specially pleaded and particulars thereof given and that proof is beyond a mere balance of probabilities. The standard of proof for fraud is thus an intermediary between a balance of probabilities and beyond reasonable doubt. Other than the bare allegations of fraud pleaded by the defendant and the third party, no evidence of such fraud was adduced. The third party did not tender evidence to prove that there was a business partnership and that he contributed in the business. There is no evidence to show how the business was managed and what the third party’s role was. It should be remembered that the allegations of a family business were dismissed by the Land Adjudication and Settlement officer when the third party raised an objection. The third party is clearly attempting to get another bite at the cherry. It was alleged that the plaintiff was aware of the fact that the third party had sold the parcels of land to the defendant but did not do anything to stop it until after several years. That in the circumstances, the plaintiff is estopped from claiming that the defendant is a trespasser. The plaintiff produced in evidence a letter dated 8/12/2006 addressed to the defendant. The letter was written by the plaintiff’s Advocates and the same warns the defendant against purchasing the land from the defendant. The defendant was specifically warned that if he proceeded to buy the land, legal action would be taken against him. It cannot therefore be said that the plaintiff acquiesced to the sale of land between the third party and the defendant. Proprietary estoppel is an equitable doctrine in land law that prevents a person from going back on a promise, assurance, or representation about land where another person relied on that assurance and suffered a detriment as a result. The elements of proprietary estoppel which a claimant must prove are: 1. **Assurance or representation.** It must be shown that the landowner made a clear assurance (express or implied) that the claimant would have some right or interest in the land; 1. **Reliance.** The claimant must have acted because of that assurance; 1. **Detriment.** It must be shown that the claimant suffered a disadvantage because of relying on the assurance; 1. **Unconscionability.** It would be unfair for the person who made the promise to deny it after benefiting from the claimant’s reliance. The evidence does not show that the plaintiff gave an assurance or made a representation either express or implied to the defendant regarding the suit land and that the defendant acted on it. The evidence shows that there was a transaction between the defendant and the third party and that the plaintiff warned the defendant about the transaction but the latter went ahead with it. The mere fact that the plaintiff may not have acted for a number of years after the defendant took possession of the suit land does not amount to acquiescence. I find that the defendant has not proven the elements of proprietary estoppel. The defendant cannot be said to be an innocent purchaser for value without notice. He had been given notice way back in 2006 by the plaintiff. In the authority of ***Sehmi & another v Tarabana Company Limited & 5 others [2025] KESC 21 (KLR)***, the Supreme Court of Kenya held as follows: 1. The doctrine of innocent purchaser for value was a fundamental principle of the law of property in land that a purchase of a legal estate for value without notice was an absolute, unqualified and unanswerable defence against the claims of any prior equitable owner or encumbrancer. The burden of proof however lay upon the person claiming to be a bona fide purchaser. Three main ingredients must be present for a claimant to mount a successful defence based on the doctrine. They were, innocence, purchase for value, and a legal estate; 2. The element of innocence meant that the purchaser must act in good faith. His conduct must not raise any doubt as to whether indeed, he did not have any notice or knowledge as to the existence of a rival interest in the suit land. If for example, it came to light that during the process of purchase, the claimant engaged in conduct that was unconscionable in the eyes of equity, such conduct would weaken his claim of innocence as to the existence of a rival interest. The element of innocence also connoted the exercise of diligence expected of any reasonable purchaser. The claimant must demonstrate that he acted diligently and conducted a reasonable inquiry into the status of the estate or land that he sought to purchase. The defendant herein does not meet the above threshold. Having analyzed the entire evidence on record, I find nothing to defeat the plaintiff’s title to the suit parcels of land. The third party has not shown that he has or had a recognizable interest in the suit parcels of land. That being the case, the third party had no authority to sell the parcels of land to the defendant. In ***Kimani (Suing as the Legal Representative of the Estate of John Kimani Munyaka) & another v Wainaina [2025] KECA 1679 (KLR)***, the Court of Appeal applied the principle of *nemo dat quod non habet* (no one can give what they don't have) and held that one cannot enforce rights arising from a transaction where the vendor possessed nothing to sell and could convey nothing to the purchaser. The court further held that the doctrine of constructive trust requires, as its foundational premise, a valid and enforceable underlying transaction. That a constructive trust cannot arise from a void transaction. Since the defendant’s purported ownership of the suit parcels of land is pegged on the third party’s title and the latter had no title or recognizable interest in the land, the transaction between the third party and the defendant concerning the suit parcels of land was *void ab initio*. The third party relies on a purported agreement dated 6/8/2007 to lay claim on the parcels of land. The evidence indicates that he first sold the land to the defendant on 8/10/2006. This was before the family allegedly agreed to allocate the parcels of land to him. What was he selling to the defendant? In **Clerk & Lindsell on Torts (17th Edition)** para 17-01, Trespass is defined thus" ***“An unjustifiable entry by one person upon the land in possession of another. Removing any part of the soil of land also constitutes trespass”*** The defendant’s entry and occupation of the suit lands was unjustifiable. He is therefore a trespasser. It is my finding that the plaintiff has proven, on a balance of probabilities that the defendant trespassed on the suit parcels of land. The defendant being a trespasser, his counter-claim must of necessity fail. The plaintiff is entitled to relief against the defendant. **DISPOSITION** In view of the foregoing, the orders which commend themselves to me and which I hereby make are as follows: 1. Judgment is hereby entered in favour of the plaintiff against the defendant; 2. An order of a permanent injunction be and is hereby issued in favour of the plaintiff as against the defendant restraining him either by himself or any other person claiming through him, from trespassing onto, alienating, ploughing or in any other way using land parcel numbers Makueni/Kiou/ 1404 and Makueni/Kiou/134; 3. The defendant’s counter-claim is hereby dismissed; 4. Costs of the suit as well as those of the counter-claim shall be borne by the defendant. The defendant joined the third party to the suit but he did not lay any claim for indemnity against him. He brought him in to support his case, a move that did not serve the purpose of a third party. The third party defended himself against the plaintiff’s suit yet no claim had been lodged against him by the plaintiff. In my view, since the defendant was not claiming indemnity against the third arty, he would have just called him as a witness in support of his case. The third party acted as a 2nd defendant yet there was nothing for him to answer in respect of the plaintiff’s claim. Given the circumstances, I make no orders with respect to the third party. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 26TH DAY OF JUNE, 2026.** **Y.A SHIKANDA** **SENIOR PRINCIPLE MAGISTRATE.**