https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4224

Wachira (Suing as a Legal Representative of the Estate of the Deceased Wachira Ngibe alias Daniel Wachira Gibe) v Wairiri (Sued as the Administrator of Geoffrey Waireri Nunua) & another (Enviromental and Land Originating Summons 10 of 2023) [2026] KEELC 4224 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEELC 4224 (KLR) Republic of Kenya In the Environment and Land Court at Nyandarua Enviromental and Land Originating Summons 10 of 2023 JM Kamau, J July 9, 2026 Between John Waweru Wachira (Suing as a Legal Representative of the Estate of the Deceased Wachira Ngibe alias Daniel Wachira Gibe) Plaintiff and Mary Njoki Wairiri (Sued as the Administrator of Geoffrey Waireri Nunua) 1st Defendant Peter Nduati Nunua 2nd Defendant Judgment 1.This suit was commenced by an Originating Summons dated 10/7/2017 which was filed in Court, first at Nyahururu on 8/2/2023 and later amended on 5/12/2018 before the same was transferred to this Court Registry later. In the suit the Plaintiff made a prayer as the legal representation of the Estate of his late father, Wachira Ngibe alias Daniel Wachira Ngibe who died on 25/9/1969 against Mary Njoki Wairiri who was sued as the Administrator of the Estate of her late father, Geoffrey Wairiri Nunua and one Peter Nderitu Nunua.In the suit the Plaintiff’s prayers were that: -a.It be declared that the Defendants hold the parcel of land Nyandarua.Ol-Kaloou /73 currently land parcel No. Nyandarua/Ol-Kaloou South/2034 and 2035 in trust for themselves and for the Plaintiff who represents the Estate of the late Wachira Ngibe.b.It be declared that the Estate of Daniel Wachira Ngibe is entitled to half the share of the original land parcel No. Nyandarua/Ol-Kaloou South/2034 and 2035 which measures approximately 84 Acres or thereabout for the benefit of the Estate of Daniel Wachira Ngibe.c.Temporary orders of injunction do issue against both Defendants, their agents, servants and/or any other person acting on their behalf from transferring or alienating or doing any other acts that would affect the status of land parcel No. Nyandarua.Ol-Kaloou South/2034 AND 2035 which were originally land parcel No. Nyandarua.Ol-Kaloou /73 until this suit is heard and determined. 2.In the grounds on the face of the summons and in the Supporting Affidavits of John Waweru Wachira sworn on 10/7/2027 and 6/12/2018 respectively, the Plaintiff states and depones that he was issued with the limited grant ad litem in respect of the Estate of the late Wachira Ngibe on 30/3/2017 who used to live with his family on Nyandarua.Ol-Kaloou South/73 and which was later sub-divided into Nyandarua/Ol-Kaloou South/2034 and 2035 after he left Kericho and that he came to Ol-kalou with the family of Wairiri Nunua, his brother-in-law on Plot No’s 50 & 51 Ol-kalou. Wachira Ngibe established his home on one side of plot No. 73 and Wairiri Nunua on the other side with an access road in between the 2 plots and the body of Wachira Ngibe was buried on the said land. Chiera Muchwe, Marko Kinyanjui and Julius Ndung’u who had retained parcels Nos. 50 and 51 in Silanga Settlement Scheme agreed that the same be retained by Chiera Muchwe, Julius Ndung’u to get plot No. 43 Gilgil West, Marko Kinyanjui Plot No 60 Ol-kalou South and Wachira Ngibe was to get plot No. 73 Ol-kalou South with Chiera Muchwe refunding Julius Ndungu, Marko Kinyanjui and Wachira Ngibe their contribution in plot No. 50 and 51. 3.When Mr. Ngibe was sick and bed-ridden he appointed his brother-in-law Waireri Nunua to represent him during the time when the money was being paid back. Wachira Ngibe was married to sister to Wairiri Nunua. The latter got registered as owner of plot No. 73 Ol-kalou Salient in trust for Wachira Ngibe and that when he went to pay for plot No. 73 he represented himself as the allottee of the same without the knowledge of Ngibe and the latter, due to poor health, was unable to pursue his rightful claim of the land and he eventually died having not done so. 4.The Defendants after the death of Geoffrey Waireri Nunua moved the Succession Court in Nakuru High Court Succession Cause No. 380 of 2007 and then transferred the suit land to themselves without disclosing that the land belonged to the late Ngibe or that the family of Ngibe were beneficiaries of the land. 5.The same was then sub-divided into parcel Nos. Nyandarua/Ol-Kaloou South/2034 and 2035 and the Plaintiff’s fear that there was a likelihood that the 2 parcels may be disposed off. 6.In the Replying Affidavit sworn on 30/10/2017 and filed in Court on 9/11/2017, the 1st Defendant deponed that the suit land Nyandarua/Ol-Kaloou South/2034 and 2035 were bought by her late husband, Geoffrey Wairiri Nunua and that she was now the registered owner of Nyandarua.Ol-Kaloou South/2035 and that the late Ngibe was not entitled to half of NYANDARUA / OL-KALOU SOUTH/73 and that her late husband did not have a claim over parcels Nos. 50 and 51 in Silanga Scheme. 7.She claimed that Nunua bought land No. Nyandarua.Ol-Kaloou South/73 and did not register it fraudulently in his name and certainly not in trust for himself and the late Ngibe. She further said that the family of the late Ngibe did not file any objection to the Succession Cause of the late Nunua and that therefore the prayers in the summons are untenable. 15.The 2nd Defendant equally filed a Replying Affidavit in response to the summons the same sworn on 24/10/2017 and filed in Court on the same day. Peter Nduati Nunua deponed that Wachira Ngibe was his brother-in-law and that the 1st Defendant was the wife of his elder brother, the late Geofferey Wairiri Nunua. 16.The deceased had indicated before his death that the 2nd Defendant be given a portion of land at Nyandarua/Ol-Kaloou South/73 where he, the 2nd Defendant had been living until 2010 when he moved out and settled on his own piece of land he had bought. He said that as he grew, he found his late brother and the late Plaintiff’s father, Ngibe living on the suit land, Nyandarua/Ol-Kaloou South each on the side of the road and each one of them had built their respective homesteads and that Ngibe is buried on the land. 17.He said that he had no objection to the Plaintiff being given a piece of land out of Nyandarua.Ol-Kalou South/73 since he found the 2 deceased persons living on the land since 1967. 18.PW1 John Waweru Wachira commenced his evidence on 12/6/2023 by adopting his Affidavit of 6/12/2028 together with the annextures thereto as his documents. He further adopted his undated witness statement filed in Court on 8/2/2018. The same is analogous to his supporting affidavit. 19.The documents that were allowed to be produced were documents Nos. 7& 8 but 6& 9 were to be marked for identifyation. P1 – P5, P7 – P8 and P10 were allowed to be produced. 20.On cross-examination by Mr. Mburu for the1st Defendant, he said the last time he was on the land was in 2016 and that he had not cultivated on the land. His father utilized the land from 1967 to 1972. He said he had lived on the land with his aunt, the 1st Defendant until 1985. He said he remained on the land even after his father’s death. He further said that he did not know how much had been given to Nunua by his father and that he did not have any documents to prove the Trust and that although he knew of the Succession Cause, he did not file any objection to it due to lack of funds. 21.On re-examination by his Advocate Mr. Gichuki, the Plaintiff said that his father was buried on the suit land and that he came to know about the partnership in 2016. 22.On questions from the Court, Mr. Waweru Wachira said that there were 4 children on his mother’s side and that his father had 3 wives all of who had 10 children in total and that he was the 3rd born from his mother. He said that he was told by his siblings, relatives and neighbours about his father’s payment of money for the land but he could not tell how much it was. 23.PW2 – Margaret Mwihaki Mwangi, an elder sister to the Plaintiff adopted her undated statement but filed in Court on 8/2/2023. She said she was the eldest daughter of the late Ngibe and her mother was Mary Wairimu Wachira and that the Plaintiff was her only brother. She said that her father invited Nunua and his family to his (Ngibe’s) Plot No. 50 and 51 in Silanga Settlement Scheme together with Chiera Muchwe, Julius Ndungu and Mark Kinyanjui. 24.He repeated the same evidence adduced by the Plaintiff and also added that her mother Mary Wairimu was the first to build on plot No. 50 and 51. She further added that Geofferey Wairiri Nunua was buried on the side of the land he had built his family house together with his wife and children and it is also where his surviving children have built houses on. The other side where her father is buried has no home. 25.On Cross-examination by Mr. Mburu, Margaret said she was born in 1950 and that her parents moved to plot No. 73 in 1966 where her parents built a home and that Nunua died in 2006 and that before his death there was no dispute over the land. 26.On re-examination by Mr. Gichuki, the witness said that she left the land in 1969. 27.PW3 – Isaac Ichung’wa Ngugi relied on his statement dated………and said that he knew the suit land belonged to Ngibe since Nunua was transacting on behalf of Wachira Ngibe in all matters relating to NYANDARUA /OLKALOU SOUTH/73. But he said he would not remember the L.R No. of the land and that he had nothing to prove David’s connection to the land. He could not also remember when Wachira died. 28.On re-examination by Mr Gichuki the witness said that Nunua was being sent to go and make payments on behalf of Wachira and that he was present when Geofferey was being sent. In answering questions from the Court, Ngugi said he did not know the acreage of the land and that he did not know the amount of money Wachira paid through Geoffrey. 29.PW4 was the 75-year-old Stephen Ng’ang’a Muchiri, a nephew to David Wachira who said he knew the late Ngibe and his entire family. He repeated the evidence given by the Plaintiff. On cross-examination by Mr. Mburu, Wachira said that he was born in 1949 and that he had never been to the suit land and could not tell the Title Number. He was also not present when money was exchanged but that he knew his uncle was related to Nunua. He could not tell how much was paid. He could not also tell whether the suit property solely belonged to the 1st Defendant’s husband. 30.On re-examination by Mr. Gichuki this witness said he was not privy to any payments made by the parties for the suit land. 31.The last Plaintiff’s witness, James Mwangi Shadrack, a settlement officer based in Nyahururu c came to Court with 2 files – for plot No. 73 and 50 and 51 respectively. He produced an agreement between Chira Muchwe, Marko Kinyanjui, Julius Ndung’u and Wachira Ngibe. This was in relation to plot Nos. 50 and 51 Silanga Settlement Scheme. The parcel was in the name of Chira Muchwe. Wachira Ngibe appointed Mr. Wairenge Ngubia. He paid ½ of his share. The 4 had contributed 10,000/- to have the land in the name of Chira Muchwe and contributed Kshs. 2,500/-. Wachira Ngibe appointed Waireri Nunua. 32.The hearing of the Defence case commenced on 26/11/2025. Lawrence Karungu Ndung’u, the land Adjudication Settlement Officer in charge of Nyandarua North took to the Witness stand in place of James Mwangi Shadrack who did not complete his evidence and produced the parcel file in respect to L.R No’s 50 and 51 Silanga Settlement Scheme and Ol-kalou Settlement Scheme No. 73 with all correspondences and an agreement which were all official documents from his office. He testified that plot Nos. 50 and 51 were official. He testified that plot Nos. 50 and 51 were owned by Ciera Muchwe, Mark Kinyanjui, Julius Ndung’u and Wachira Ngibe. There was a third party Wachira Ngibe. He further said that Wachira Ngibe was to get and did get plot No. 73 in Ol-kalou South. 33.On cross-examination by Mr. Mburu for the 1st Defendant the 45-year-old Land Adjudication and Settlement officer said he was not an officer of the said land’s office in the 1960’s and that the documents he produced in Court are what he found in his office. The letter of offer for plot No. 73 was to Wairiri Nunua dated 17/2/1966 who paid the premiums in respect thereto and that there was no much in the file of Wachira Ngibe. He confirmed that Ngibe appointed Nunua to buy ½ of his share. 34.On re-examination by Mr. Gichuki, the witness said that plot Nos. 50 and 51 had their own distinct parcel files. 35.Mary Njoki Wairiri, wife to the late Geoffrey Wairiri Nunua adopted her statement dated 16/4/2015 which is a duplicate of her Affidavit in Reply sworn on 30/10/2017. She said she has been in possession of the suit land and has been using it and would want to continue using it for her benefit and that of her children. She then produced the following documents. 36.She then said that the family of Ngibe were given permission to stay on the suit land by her late husband and were never evicted therefrom. They did leave voluntarily after getting their own land. She said her husband died in 2006. She said that she gave the 2nd Defendant 2 acres as that was the wish of her late husband. When cross-examined by Mr. Gichuki for the Plaintiff, the 1st Defendant said that Ngibe was given a grave by her husband due to the respect of the family for Rahab Wangui, the 2nd wife to Ngibe, a sister to Geoffrey Nunua. She said that before they landed on the suit land she couldn’t tell where they were staying and that she married Nunua in 1959. She could not tell any money given to her husband by Ngibe and that she knew nothing about plot Nos. 50 and 51 Silanga. She admitted that her husband had no job in 1966 and/or 1967. On re-examination by Mr. Mburu the widow to Nunua said her husband had given Ngibe a place to stay. 37.DW2 Grace Wangechi daughter to Geoffrey Nunua adopted her statement dated 16/4/2018. She said that plot No. Nyandarua / Olkalou South/73 belonged to the late Geoffrey Waireri Nunua who bought if from the SFT in 1966. The allocation latter was dated 17/2/1986 issued to him upon payment of Kshs. 4,000/- and the property was transferred to him in 1982. He passed on on 15/7/2006 and his widow, Mary Njoki Waireri applied for probate. She said that Nunua had bought shares in plot No. 50 and 51 Silanga but later pulled out. Mary sub-divided the said land into 2034 which she gave to the 2nd Defendant and retained 2035 as hers which she later sub-divided into 3080 and 3093. She said Njoki had been in possession of the suit land to date. On cross-examination by Mr. Gichuki with the 2nd Defendant preferring no questions to the witness, the daughter to Geoffrey Wairiri Nunua said she was born in 1976 and said she was not aware the Plaintiff was staying in the suit land and that Wachira Ngibe died before she was born and could not tell what arrangements the 2 men had. She said according to the documents she had seen her father was a shareholder in the Silanga scheme plots 50 and 51 and could not tell what became of those shares. 38.Upon the close of the 1st Defendant’s case, the 2nd Defendant, Peter Nduati Nunua said he was given a piece of land by his late brother Geoffrey Wairiri Nunua in 1966 – 2 Acres. 39.On cross-examination by Mr. Mburu for the 1st Defendant, Mr. Nunua born in 1952, said he was on the suit land since 1966. He then disowned his Affidavit of 24/10/2019. 40.When cross-examined by Mr. Gichuki, Mr. Nunua said Ngibe was married to his elder sister Rahab Wangui who was also older than Geoffrey and that he didn’t know why Ngibe was buried on the suit land since he was by then in primary school. When asked by the Court, Nderitu Nunua said that the person who brought him the summons is the one who came with the Affidavit and asked him to sign it without reading it. He asked that the same be expunged from the Court Records. 41.In the agreement dated the 14/3/1967, Mr Waireri Nunua the late Defendant in this suit was appointed by Wachira Ngibe, the Deceased Plaintiff herein to receive the proceeds of the sale of plot Nos. 50 and 51 in Silanga Scheme - ½ of his share. This agreement was copied to the District Officer Ol-kalou and witnessed by the area Assistant chief. It was also copied to the Senior Settlement Officer, Dundori and Area Settlement Controller–this being the late Wachira’s contribution made on 1/7/1163 which according to the letter dated 6/3/1967 from the Area Investigations Officer was Kshs. 2,500/- per contributor. In the letter it shows that Waireri Nunua was given plot No. 73 Ol-kalou and Wachira Ngibe is not shown to have received anything. Certainly, this is because Wachira Ngibe had already appointed Waireri Nunua to receive his (Wachira’s) share. This then resonates with the Plaintiff’s testimony that he had a share of plot No. 73 that was registered in the sole name of the Defendant. And from the letter dated 17/2/1966 the Defendant is shown to have paid kshs. 4,000/- for plot No. 73, meaning that the Kshs. 2,500/- that he received from Mr. Ngibe was more than half of this amount although all the documents show that the allotment was to Mr. Nunua . 42.This also resonates with the Plaintiff’s evidence that Waireri Nunua was given plot No. 73 Ol-kalou South and the allotment letter addressed to him solely because Wachira Ngibe was sick and bed ridden. Otherwise how come that out of the 4 joint contributors of plot Nos. 50 and 51 all the other equals contributors were provided for save for the Plaintiff’s father. Waireri Nunua must therefore have failed to disclose that plot No. 73 belonged to him and the sick and bed ridden Wachira Ngibe when the latter could not proceed to the settlement officer to accompany Waireri so that the two could get the land registered in their joint names. Either Waireri decided to take advantage of Ngibe’s sickness and bed-ridden situation or he always had in mind that the two of them owned the land jointly until both men died that the family of Waireri started pushing out the family of Wachira Ngibe and Ngibe who had been buried on the land. Wachira Ngibe was buried on the suit land and no explanation has been advanced by the Defendants why this was so. How do you explain how Wachira and his wife were buried on the suit land without any query from the Waireri’s family? 43.Secondly, it appears that the 2 parcels are distinct and divided by an access road in the middle. But the main question is, where did Wachira Ngibe’s share from the money refunded by Chiera Muchure go to and why then did Nunua get such a big share of the land. The only logical explanation is that the land was meant for the two and he held the land in trust for himself and on behalf on the Plaintiff’s father. I also agree with the Plaintiff that the late Wachira Ngibe, due to his sickness sent Waireri Nunua to transact on his behalf since he trusted him. This evidence was given credence by Isaac Ngugi Ichungwa (PW3). 44.Pw5, the Nyandarua Land Adjudication and Settlement Officer testified that the evidence he had from the file in his office showed that the agreement referred to above dated 1/7/1963 indicated that Waireri Nunua was appointed by Wachira Ngibe to receive the money (Wachira’s contribution) but he could not tell what Nunua used to do with the money he was receiving and it is clear from the way the 2 lived together on two distinct parcels tallies with this understanding. 45.As to the Defendant’s agreement that she held a Title Deed, the root of the Title matters and when one’s Title Deed is questioned, he must explain how it was obtained but not to just dangle the Title Deed and insist that the land belongs to him. 46.The agreement that was explained by the Plaintiff that the 5 that Chiera Muchure, Marko Kinyanjui and Julius Ndungu to retain plot Nos. 50 and 51 in Silanga Settlement Scheme while Wachira Ngibe was to get plot No. 73 appears plausible. 47.I would believe the Plaintiff when he says that his late father was shortchanged by a person he so trusted due to illness. 48.PW3 Isaac Ichungwa Ngugi said that he knew that the suit land belonged to Ngibe since Nunua was transacting on Wachira Ngibe’s behalf in all matters relating to Nyandarua/Ol-Kaloou South/73. The land Adjudication and Settlement Officer in charge of Nyandarua North, Mr. Lawrence Karungu Ndung’u confirmed that among the documents in his possession showed that Wachira Ngibe was to get and actually did get plot No. 73 Ol-kalou South. He also confirmed that Wachira Ngibe appointed Nunua to receive ½ of his share. The late Nunua held half of plot Number 73 in trust for Wachira Ngibe. 49.A constructive trust is an equitable remedy imposed by the courts, irrespective of the parties' intentions, to prevent unjust enrichment or to give effect to the parties' common intention regarding property ownership. Unlike express trusts, constructive trusts arise by operation of law when equity considers it unconscionable for the legal owner to retain beneficial ownership of property. The court "constructs" a trust relationship to ensure fairness, compelling the legal owner to hold the property in trust for another person who has a better equitable claim. On its historical development and Equitable foundation Constructive trusts evolved from the Court of Chancery's inherent jurisdiction to prevent unconscionable conduct. The remedy developed as equity's response to situations where legal title alone would produce unjust results. Early cases established that equity would not permit a statute or legal right to be used as an instrument of fraud, a principle articulated in Rochefoucauld v Boustead [1897] 1 Ch 196. This case demonstrated that where property is transferred on the faith of an oral agreement (even unenforceable under statute), equity would impose a constructive trust to prevent the transferee from relying on the statute to commit fraud. The doctrine reflects equity's fundamental maxim that "equity will not allow a statute to be used as an instrument of fraud" and demonstrates equity's willingness to look beyond legal formalities to achieve substantive justice. Constructive trusts arise by operation of law when specific circumstances occur.This doctrine was recognized in Lysaght v Edwards (1876) 2 Ch D 499.“……….Upon exchange of contracts for land sale, the vendor becomes a constructive trustee of the legal estate for the purchaser………..” 50.Under English law, where parties agree before acquiring property that it will be held for their joint benefit, a constructive trust may arise. 51.In Lloyds Bank plc v Rosset [1991] 1 AC 107, Lord Bridge established that common intention constructive trusts require either: An express agreement or understanding between parties that beneficial ownership differs from legal ownership, coupled with detrimental reliance by the claimant. Direct financial contributions to the purchase price, from which common intention can be inferred. 52.In Willy Kimutai Kitilit v Michael Kibet (2018) eKLR In 2008, Willy Kimutai Kitilit agreed to sell 2 acres of agricultural land to Michael Kibet for Kshs. 300,000. Kibet paid the amount in installments up to 2010, took possession, fenced the property, and planted trees. Instead of finalizing the legal transfer, Kitilit registered the entire property under his own name in 2012 and sued to evict Kibet. Kitilit argued that the transaction was entirely null and void under Section 6 of the Land Control Act because the parties never obtained statutory consent from the Land Control Board within the required timeframe. Kitilit argued that the law explicitly states controlled land transactions without LCB consent are completely void, meaning he should keep the land. Kibet on the other hand relied on Equity which dictates that a person cannot take full payment, let someone develop the land, and then back out using a legal technicality. The Court of Appeal dismissed Kitilit's appeal with costs and upheld the Environment and Land Court’s decision, establishing several key legal precedents:Creation of a Constructive Trust: When Kitilit accepted the money and gave Kibet physical possession of the land, he legally became a "constructive trustee" holding that portion of the land for the benefit of Kibet.Equity Overrides Fraudulent Use of Statutes: The judges ruled that statutory provisions cannot be used as an instrument for fraud. It would be highly unjust to allow a Vendor to pocket the purchase price and simultaneously retain ownership of the property.Specific Performance: The court ordered specific performance, forcing Kitilit to transfer the 2 acres of land to Kibet as originally agreed. 53.This case firmly embedded the equitable doctrine of constructive trust within Kenyan property transactions, blocking sellers from acting fraudulently under the cover of statutory loopholes………..In matters involving the sale of land, held that the equitable doctrines of constructive trust and proprietary estoppel are applicable and enforceable to land, subject to the circumstances of the case………..The Court went ahead to hold that:“By Section 25 of the Land Registration Act, the rights of a proprietor of land whether acquired on first registration or subsequently for valuable consideration or by an order of a court shall not be liable to be defeated except as provided in the Act. However, Section 25 (2) of LRA provides that the provisions of the section does relieve a proprietor from any duty or obligation to which the proprietor is subject to as a trustee………..Under Section 28 of the Land Registration Act, all registered land is subject to overriding interests without being noted on the register specified therein which includes trusts, including customary trusts, rights acquired or in the process of being acquired by virtue of any written law relating to limitation of actions or by prescription and any other rights provided under any written law." 54.Section 38 of that Act as amended by Section 55 of the Land Laws (Amendment) Act No. 28 of 2016 deals with the validity of a contract for sale of land. Section 38 (1) provides, in essence, that“no suit shall be brought upon a contract for disposition of an interest in land unless the contract on which the suit is founded is in writing, is signed by all parties thereto and the signature of each party has been attested by a witness who was present when the contract was signed.”Further, Section 38 (2) provides:Subsection (1) shall not apply to –(a)a contract made in the course of a public auction.(b)the creation or operation of a resulting, implied or a constructive trust" 55.The Law of Contract Act, Chapter 23 of the Laws of Kenya provides in Section 3 that:No suit shall be brought upon a contract for the disposition of an interest in land unless-(a)the contract on which the suit is founded –(i)is in writing.(ii)is signed by all parties thereto; and(b)the signature of each party signing has been attested by a witness who is present when the contract was signed by such party.Provided that this Section shall not apply to a contract made in the course of a public auction by an auctioneer within the meaning of the Auctioneers Act (Cap 526); nor shall anything in it affect the creation of a resulting, implied or constructive trust.” 56.The doctrines of equity are part of our laws although Section 3 of the Judicature Act subordinates common law and the doctrines of equity to the Constitution and written law in that order. Sections 3(3) of the Law of Contract Act and Section 38 (2) of the Land Act as amended clearly stipulate that the requirement that contracts for disposition of an interest in land should be in writing does not affect the creation or operation of a resulting, implied or constructive trust. The equity of proprietary estoppel is omitted but as the decision in Yaxley v. Gotts [2000] Ch. 162 (Yaxley’s case) on which the Court in Macharia Mwangi Maina Decision relied, amongst others, shows that the doctrine of constructive trust and proprietary estoppel overlap and both are concerned with equity’s intervention to provide relief against unconscionable conduct. Thus, since the current Constitution has by virtue of Article 10(2) (b) elevated equity as a principle of justice to a constitutional principle and requires the courts in exercising judicial authority to protect and promote that principle. The word equity broadly means a branch of law denoting fundamental principles of justice. It has various meanings according to the context but three definitions from Black’s Law Dictionary, Ninth Edition will suffice for our purpose:1.---2.The body of principles constituting what is fair and right.3.The recourse to principles of justice to correct or supplement the law as applied to particular circumstances ---4.The system of law or body of principles originating in the English Court of Chancery and superseding the common and statute law (together called “Law” in the narrower sense) when the two conflict” 57.In Macharia Mwangi Maina Decision relied, amongst others, shows that the doctrine of constructive trust and proprietary estoppel overlap and both are concerned with equity’s intervention to provide relief against unconscionable conduct. 58.There is another stronger reason for applying the doctrines of constructive trust. By Article 10(2) (b) of the Constitution of Kenya, equity is one of the national values (emphasis supplied) which binds the courts in interpreting any law (Article 10(1) (b)). Further, by Article 159(2) (e), the courts in exercising judicial authority are required to protect and promote the purpose and principles of the Constitution. Moreover, by virtue of clause 7 of the Transitional and Consequential Provisions in the Sixth Schedule to the Constitution, any Act should be construed with the alterations, adaptations, and exceptions necessary to bring it into conformity with the Constitution. 59.Thus, since the current Constitution has by virtue of Article 10(2) (b) elevated equity as a principle of justice to a constitutional principle and requires the courts in exercising judicial authority to protect and promote that principle, amongst others, it follows that the equitable doctrines of constructive trust and proprietary estoppel are applicable to and supersede any Act. 60.The law does not preclude the court from giving effect to equitable principles, in particular the doctrine of constructive trust. 61.The Court of Appeal decision in Macharia Mwangi Maina & 87 others v Davidson Mwangi Kagiri [2014] e KLR described constructive trust as an equitable concept that acts on the conscience of a fiduciary to prevent a person from acting unconscionably to defeat the common intention. 62.The Court of Appeal in Twalib Hatayan & another v Said Saggar Ahmed Al-Heidy & 5 others, Civil Appeal No 51 of 2014 [2015] eKLR held that:“A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position for his own benefit (see. Halsbury’s Laws of England supra at para1453). As earlier stated, with constructive trusts, proof of parties’ intention is immaterial; for the trust will nonetheless be imposed by the law for the benefit of the settlor. Imposition of a constructive trust is thus meant to guard against unjust enrichment.” 63.In Arvid Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others [2023] KESC 106 (KLR) the Supreme Court of Kenya held that A constructive trust can be imported into a land sale agreement to defeat a registered title. Reaching a judgment that erroneously overrode established principles of contract and the provisions of section 3 Law of Contract Act, sections 36, 41, 43 and 44 of the Land Registration Act. It went ahead to observe: 64.The Trustee Act, cap 167 Laws of Kenya defines a “trust” and “trustee” as extending to implied and constructive trusts. The Black’s Law Dictionary, 9th edition defines a trust as:“The right, enforceable solely in equity, to the beneficial enjoyment of property to which another holds legal title; a property interest held by one person (trustee) at the request of another (settlor) for the benefit of a third party (beneficiary).”It further defines a constructive trust at pg 1649 as:“An equitable remedy that a court imposes against one who has obtained property by wrong doing”. 65.Halsbury’s Laws of England, 4th edition, volume 48 at paragraph 690 states as follows on constructive trusts:“A constructive trust will arise in connection with the legal title to property whenever one party has so conducted himself that it would be inequitable to allow him to deny to the other party a beneficial interest in the property acquired. This will be so where: (1) there was a common intention that both parties should have a beneficial interest; and (2) the claimant has acted to his detriment in the belief that by so acting he was acquiring a beneficial interest. The relevant intention of each party is the intention reasonably understood by the other party to be manifested by that party’s words or conduct notwithstanding that he did not consciously formulate that intention or even acted with some different intention which he did not communicate.The first question is whether, independently of any inference to be drawn from the conduct of the parties in the course of sharing the property, there has at any time prior to acquisition, or exceptionally at some later date, been any agreement, arrangement or understanding reached between them that the property is to be shared beneficially. Such an agreement will be conclusive. Where the evidence is that the matter was not discussed at all, the court may infer a common intention that the property was to be shared beneficially from the conduct of the parties. In this situation direct contributions to the purchase price by the party who is not the legal owner, whether initially, or by way of mortgage instalment, will readily justify the inference necessary to the creation of a constructive trust. Exceptionally the agreement, arrangement or understanding may be arrived at after the date of the original acquisition. Once common intention has been established, whether by direct evidence of common agreement or by inference from conduct, the claimant must show that he acted to his detriment in reliance on the agreement. The final question to determine is the extent of the respective beneficial interests. If the parties have reached agreement, this is conclusive. Where there is no agreement as to the extent of the interest, each is entitled to the share the court considers fair having regard to the whole course of dealing between the parties in relation to the property.” 66.A constructive trust is thus an equitable instrument which serves the purpose of preventing unjust enrichment. The Canadian Supreme Court in Soulos v Korkontzilas, [1997] 2 SCR 217, a case which involved a land dispute stated as follows, as to the purpose of constructive trust:“The constructive trust is an ancient and eclectic institution imposed by law not only to remedy unjust enrichment, but to hold persons in different situations to high standards of trust and probity and prevent them from retaining property which in “good conscience” they should not be permitted to retain. While Canadian courts in recent decades have developed the constructive trust as a remedy for unjust enrichment, this should not be taken as expunging from Canadian law the constructive trust in other circumstances where its availability has long been recognized. Under the broad umbrella of good conscience, constructive trusts are recognized both for wrongful acts like fraud and breach of duty of loyalty, and to remedy unjust enrichment and corresponding deprivation. While cases often involve both a wrongful act and unjust enrichment, constructive trusts may be imposed on either ground.” 67.Similarly, although in a matrimonial property dispute, the Canadian Supreme Court in Murdoch v Murdoch [1975] 1 SCR 423 stated as follows:“As is pointed out by Scott, Law of Trusts, 3rd ed., 1967, vol. 5, at p. 3215, “a constructive trust is imposed where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it ... The basis of the constructive trust is the unjust enrichment which would result if the person having the property were permitted to retain it. Ordinarily, a constructive trust arises without regard to the intention of the person who transferred the property”; and, again, at p. 3413, quoting Judge Cardozo “a constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.” 68.The United States Supreme Court in Harris Tr & Sav Bank v Salomon Smith Barney Inc, 530 US 238, 250–51 (2000) citing Moore v Crawford, 130 US 122, 128 (1889) stated thus:“Whenever the legal title to property is obtained through means or under circumstances ‘which render it unconscientious for the holder of legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same.” 69.As has been established therefore, trusts are created either expressly, where the trust property, its purpose and the beneficiaries are clearly stated, or established by the operation of the law. Like in the instant case, where it is not expressly stated, the trust may be established by operation of the law. 70.From the definitions above, we establish that a constructive trust is a right traceable from the doctrines of equity. It arises in connection with the legal title to property when a party conducts himself in a manner to deny the other party beneficial interest in the property acquired. A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position for his own benefit. 71.Article 40 has an internal limitation on the right to property, the general limitation of rights provision at article 24 of the Constitution provides that any limitation on a right shall be by law, and only to the extent that the limitation is reasonable and justifiable, in an open and democratic society based on human dignity, equality and freedom. Other relevant factors to be considered include the nature of the right, the importance and purpose of the limitation, and relation between the limitation and the purpose of such limitation. It further, provides that the person seeking to justify a particular limitation has the obligation to justify the limitation. 72.As prescribed, a limitation of a fundamental right or freedom, must be provided under law. 73.Section 28 provides that unless the contrary is expressed in the register, all registered land shall be subject to overriding interests as may for the time being subsist and affect the same, without being noted in the register. These overriding interests include, trusts. Applying the provisions of article 24 of the Constitution therefore, the limitation of the right to property is provided under law, and includes a constructive trust. Section 28 provides that the registration is subject to overriding interests. One of these overriding interests is trust, which includes constructive trust. 74.Constructive trusts can arise in various circumstances, including in land sale agreements. Trust is an equitable remedy which is an intervention against unconscionable conduct. Where the circumstances of the case are such that it would demand that equity treats the legal owner as a trustee, the law will impose a trust. It is imposed by law whenever justice and good conscience require it. On this issue and for the reasons given above, I therefore find that a constructive trust can be imported into a land sale agreement to defeat a registered title. 75.As I have held in essence that, the lack of the agreement being reduced in writing does not preclude the court from giving effect to equitable principles, in particular the doctrine of constructive trust. In view of the evidence adduced, I accordingly find that this suit has merit and allow Judgment to the Plaintiff as prayed for in the Originating Summons as amended on 5/12/2018 with costs. JUDGMENT READ AND DELIVERED AT NYANDARUA THIS 9TH DAY OF JULY 2026.MUGO KAMAU.JUDGE.In the Presence of:-Court Assistant: Samson.Plaintiff’s Counsel. Ms. Macharia.1st Defendant’s Counsel: Mr. Mburu.2nd Defendant: In person.