Owuor v Ouko & another (Environment and Land Appeal E038 of 2024) [2026] KEELC 3970 (KLR) (29 June 2026) (Judgment)

Owuor v Ouko & another (Environment and Land Appeal E038 of 2024) [2026] KEELC 3970 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] KEELC 3970 (KLR) Republic of Kenya In the Environment and Land Court at Siaya Environment and Land Appeal E038 of 2024 AE Dena, J June 29, 2026 Between William Owuor Appellant and Winnie Ouko 1st Respondent Spephen Otieno Amollo 2nd Respondent (Being an appeal against the judgment and decree of JOHN PAUL NANDI dated 23.09.2024 in Bondo MCELC No. E037 of 2021) Judgment 1.This appeal is a contestation of the outcome of the lower court’s suit (Hon. J. Nandi) in Bondo MCELC No. E037 of 2021. The appellant WILLIAM OWUOR was the plaintiff in the suit while the respondents in this appeal Winnie Ouko and Stephen Otieno Amollo were the defendants. Stephen Otieno Amollo was the defendant in the counterclaim raised by Winnie Ouko. The suit in the lower court related to ownership of parcel of land viz: Nos. SOUTH SAKWA/BARKOWINO/9948 (herein suit property) registered in the name of the the appellant. The parcel is situate in Bondo, Siaya County. 2.For purposes of this judgement, I will refer to the parties as William, Winnie and Stephen for ease of reference. 3.In his plaint dated 23/07/2021, William sued Winnie for trespass to the suit property. He contended that Winnie who had been staying on the suit property by virtue of an intimate relationship with Stephen from whom he had purchased the suit property had declined to vacate the same and was therefore a trespasser depriving him of peaceful and quiet enjoyment thereof causing loss and damage to him. He sought a declaration that he is the bonafide owner of the suit property, orders of permanent injunction, general damages for trespass and costs. 4.In response to the suit Winnie filed a defence and counterclaim dated 26/11/2021. She contended the suit property was first registered in the name of Stephen Otieno Amollo (herein Stephen) from 14/8/2019 – 25/06/2021 when he fraudulently transferred the same to William without consideration passing between them in a sham transaction without her knowledge or consent. She claimed the transaction was null and void and was subject to her fiduciary interests therein as the equitable and proper owner. Further, she has been in lawful possession of a house constructed thereon since July 2019 upon her return from Australia which she continues to occupy as equitable owners. 5.In the counterclaim Winnie avers they were in a romantic relationship with Stephen and when she went to work in Australia they had agreed Stephen would procure for her land for construction of her house and Winnie would be remitting the requisite funds which she remitted to the tune of Kshs. 2,869,779.82. The parcel was identified in Bondo and construction completed in July 2019 when she also returned to Kenya. That Thomas informed her the title was yet to be issued. However she returned to Australia in August 2019 leaving her nephew to stay in the house and came back to bury Stephens’ father in September 2020 and resumed occupation of the house. That their relationship broke down in June 2021 upon failure by Stephen to produce the title in her name. She was later served with a demand notice for eviction by the William and upon investigation learnt the suit property was registered in Thomas’ name on 14/8/2019 and followed by the sham transaction with William. The particulars of fraud are listed in paragraphs 18:1 – 18:9 of the Counterclaim. 6.In the counterclaim Winnie sought a permanent injunction both against William and Stephen and their agents from interalia entering the suit property and disturbing her exclusive possession and a declaration of a constructive trust in favor of the defendant as well as orders compelling William to execute transfer in her favor and costs of the suit. The particulars of Trust are outlined in paragraphs 19.1 – 19.4 of the Counterclaim. 7.William replied, denying that he is an agent of Stephen and reiterated that he was an innocent purchaser for value of the suit property. 8.In a defence dated 27/01/2022 Stephen admitted they were in a romantic relationship with Winnie though not married. He denied the existence of the arrangements to buy land and construct the house on behalf of Winnie. That the monies if any received from her were not in relation thereto and have been refunded in full. 9.The Defendant Winnie further filed a reply to the defence to the counterclaim dated 15/02/2022. 10.During the hearing in the trial court ,William testified alone while Winnie called 2 witnesses; they included herself and Moureen Odhiambo, Stephens’ estranged wife. Stephen who is the defendant in the counterclaim testified as well. 11.After hearing the parties, the trial court in its judgment framed 3 issues for determination which I will refer to later in this judgement. namely 1) Whether the plaintiff is a bonafide purchaser for value 2) Whether the defendant is a trespasser onto the suit property and 3) Whether the defendant has established a constructive trust in the suit property. The findings will be become clearer later in this judgement. 12.In its final disposition the trial court made the following orders; -a.The title in favour of the plaint in respect of parcel SOUTH SAKWA/BARKOWINO/9948 be and is hereby cancelled for failure to carry out due diligenceb.That a fresh title deed to parcel SOUTH SAKWA/BARKOWINO/9948 be issued and registered in the joint names of the defendant and the- defendant-to-the counterclaim.c.Once prayer (b) is implemented the parties can move the court to determine the percentage each holds and/or contributed to the acquisition of the suit property.d.Each party to bear his or her own costs of the suit and the counterclaim. 13.Aggrieved by the above decision the appellant has raised the following grounds of appeal; -1.The Learned Magistrate erred in law and fact in holding that the Appellant herein was not a bonafide innocent purchaser for value for failing to carry out due diligence pending the purchase of the property.2.The Learned Magistrate erred in law and fact in holding that the title for the property known as South Sakwa/Barkowino/9948 held in the name of the Appellant herein be cancelled, and afresh title be issued in the joint names of the Respondents.3.The Learned Magistrate erred in law and fact in holding that the 1 st Respondent is not a trespasser onto the suit property 14.It is proposed to ask the court for the following orders;-i.This Appeal be allowed.ii.The Judgement delivered on 23rd September 2024 in Bondo MCELC No. E037of 2021(William Owuor -vs- Winnie Ouko and Stephen Otieno Amollo) be wholly overturned.iii.The costs of this Appeal be provided for. Submissions 15.The parties’ counsels agreed to dispose of the appeal by written submissions. The appellant’s counsel filed his written submissions dated 19/12/2025 while the respondent filed hers on 31/10/2025. Appellants Submissions 16.The appellant consolidated the grounds of appeal into two as summarized hereinbelow; - Whether the learned Magistrate erred in law and in fact in holding that the Appellant herein is not a bonafide innocent purchaser for value for failing to carry out due diligence pending the purchase of the property and consequently cancelling the title deed 17.It is submitted that it is uncontroverted that the Appellant is the registered owner of the suit property having acquired it from the 2nd Respondent for value. Prior to acquiring title, the Appellant conducted an official search which confirmed the 2nd Respondent as the then registered owner and holder of the apparent title. That the Appellant acquired the title to the suit property without notice of any fraud and/or taking part in any such fraud. As a bona fide purchaser of a legal estate without notice, the Appellant had absolute, unqualified and answerable defence against claim of any prior equitable owner. The court is referred to the case of Lawrence Mukiri v. Attorney General & 4 Others [2013] eKLR where Katende v Haridar and Company Limited (2008) 2 EA 173 was cited. 18.Relying on the provisions of Section 26 ,24 (a) and 25(1) of the Land Registration Act 2012, it is submitted that the law is extremely protective of titles and provides only two instances for the challenge of title; where the title is obtained by fraud or misrepresentation to which the person must be proved to be a party and where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme, both of which have not been adduced in the instant case. That the Plaintiff obtained a clean title from the Defendant to the Counter Claim for value for money. The alleged fraud by the 1st Respondent is unsubstantiated and not pleaded. 19.Reliance is placed on the cases of Republic v Land Registrar Taita Taveta District & another [2015] eKLR; the Court of Appeal holding in Dr Joseph Arap Ngok Vs Justice Moijo Ole Keiwa & 5 Others Civil Appeal No. CA 60 of 1997 ; Eunice Grace Njambi Kamau & another v Attorney General & 5 others [2013] eKLR and Kinyanjui Kamau vs George Kamau [2015] eKLR on standard of proof of fraud. 20.It further submitted that the Plaintiff's claim cannot be defeated by the mere lack of title deed as she has demonstrated that she has registrable interest over the suit property as held in M. A. Koinange -vs Joyce Ganchuku & 2 others (2015) eKLR. Whether the learned Magistrate erred in law and fact in holding that the 1st Respondent is not a trespasser onto the suit property. 21 .Rehashing the standard of proof in civil cases as that balance of preponderance of probabilities it is submitted that the actions of the appellant subsequent to the sale of the suit property and the outcome of the criminal proceedings herein and the refusal to vacate the same amount to trespass. Reliance is placed in the case of Joseph Mutua Zakayo -vs- County Govt of Makueni & 9 others [2020] eKLR where the Court issued a permanent injunction restraining the Defendants from trespassing on the Plaintiff's property although unregistered and Martha Kigen -vs- Johnson Tibino (2014) eKLR. 22 .The court is urged to allow the appeal as having merit. Respondents Submissions 23 .The respondent submitted on the appeal generally and contend that the trial court rightly found that the 1st Respondent had proved, on a balance of probabilities, that she had remitted a total sum of KShs. 2.869.779.82 to the 2nd Respondent, both personally and 'through his company, Stepharm Enterprises, for the purpose of acquiring the suit property and constructing a residential house to her specifications. The remittances were corroborated by DW2 who was also involved in the construction, and attendance at the handing-over of the completed house. 24 .It is submitted that the Appellant's claim of being a bona fide purchaser for value without notice was correctly dismissed by the trial court. The alleged transaction was done in cash, without any documentary trail of payments, source of funds, or evidence of consideration. 25 .It is submitted that constructive trusts arise where one party has contributed finances toward the acquisition or development of a property and the legal title is held by another party. Reliance is placed in the case of Archer & Another v Archer & 2 Others [2023] KECA 298 (KLR), where the Court of Appeal held that a constructive trust may be inferred from conduct and financial contribution where there is a common intention or detrimental reliance. The court was also referred to Twalib Hatayan & Another v Said Saggar Ahmed Al-Heidy & 5 Others [2015] KLR,. 26Referring to the provisions of Section 25(2) of the Land Registration Act it is submitted that the registration of the Appellant, was subject to the existing constructive trust. The 1st Respondent's equitable ownership was not extinguished by the registration of the title in the Appellant's name. The court correctly found that both the 2nd Respondent and the Appellant held the property in trust for the 1st Respondent. 27.It is further urged that the Appellant failed to challenge the trial court's findings with any cogent or new evidence. That the appeal is a mere attempt to defeat a valid trust and deprive the rightful owner of her property contrary to equity and good conscience and must be dismissed. Analysis And Determination 28I have carefully perused the record including the lower court pleadings and impugned judgment. I have also carefully considered the grounds of appeal and the parties’ respective rival submissions and considered applicable provisions of law, case law and common law principles as enunciated by courts. 29.This is a first appeal, the court is reminded of its primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyse the extracts on the record and determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way but having in mind that it did not have the benefit of seeing the witnesses - see the case of Abok James Odera t/a A.J Odera & Associates Vs John Patrick Machira &Co. Advocates (2023)eKLR.; Arthi Highway Developers Limited vs. West End Butchery Limited & 6 Others [2015] eKLR, and Selle vs. Associated Motor Boat Co. [1968] EA 123. 30It is my considered view that this appeal will be best determined if this court considers 1)whether the plaintiff/appellant proved his case to the required standard and 2)whether the defendant respondent proved her counterclaim to the required standard and What orders commend as to costs of this appeal. 31.In determining the two issues above , I will seek to answer the question Whether the trial court erred in;-a.Failing to uphold the plaintiffs title as a bonafide purchaserb.Finding that the defendant was not a trespasserc.Finding there was a constructive trust in favour of the defendant and a fresh title be issued in the joint names of the Respondents. Whether The Plaintiff/Appellant Proved His Case To The Required StandardDid the trial court err Failing to uphold the plaintiffs title as a bonafide purchaser 32.The plaintiff in the plaint dated 23/7/2021 sought a declaration that he is the bonafide owner of the suit property. It is pleaded at paragraph 4 he purchased the same from Stephen Otieno Amollo pursuant to which he presented the relevant documents which I will refer to later in this judgement. Thereafter the defendant who had been residing on the suit property by virtue of an intimate relationship with the vendor subsequently refused to vacate the suit property becoming a trespasser. 33.However the defendant Winnie pleads that the said transaction between the plaintiff William and Stephen was a sham and the title was fraudulently and irregularly issued to the plaintiff to create the false appearance of a bonafide purchaser. She also claims an equitable interest on the suit property having availed the funds to Stephen for its purchase and construction of her house thereon. That upon registration the William acquired no lawful interest but instead became a trustee of the defendant holding her absolute equitable interest on a constructive trust in her favor. 34.The issue of whether the plaintiff is a bonafide purchaser was subject to analysis by the trial court where the trial court found that the plaintiff did not exercise due diligence before purchasing the suit property. That the plaintiff should have obtained the history of the property not just from the land registry but also from the neighbors. That the plaintiffs title was liable to be cancelled. 35.The trial court referred to the provisions of section 107, 108 and 109 of the Evidence Act on the burden of proof and rightfully so. It is trite law that he who alleges must prove. I will rehash these provisions; -Section 107 provides as follows:“(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”Sections 109 states as follows:“109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 36.I will add Section 112 which is also relevant in this regard; -112.In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.” 37 .It is noteworthy that legal burden is, discharged by way of evidence, with the opposing Party having a corresponding duty of adducing evidence in rebuttal. 38.The burden of proof lay upon William to demonstrate to the court that he is a bona fide purchaser for value without notice, just as it was Winnie’s responsibility to demonstrate that the Plaintiffs committed the acts of fraud as particularised and the existence of a constructive trust. 39.The trial court cited the definition of a bonafide purchaser from 8th Edition of Blacks Law and the case of Lawrence Mukiri Vs Attorney General & 4 Others (2013) eKLR on the elements to be proved to successfully rely on the doctrine of bonafide purchaser. Indeed, the elements derive from the Ugandan Court of Appeal in Katende Vs Haridar & Company Ltd (2008) 2EA 173 where the court stated thus; -“For the purposes of this appeal, it suffices to describe a bona fide purchaser as a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine, … (he) must prove that:(a)he holds a certificate of title;(b)he purchased the property in good faith;(c)he had no knowledge of the fraud;(d)he purchased for valuable consideration;(e)the vendors had apparent valid title;(f)he purchased without notice of any fraud;(g)he was not party to any fraud.”A bonafide purchaser of a legal estate without notice has absolute unqualified and answerable defence against claim of any prior equitable owner.’ 40.Black’s Law Dictionary, 8th edition defines “bona fide purchaser” as:“One who buys something for value without notice of another’s claim to the property and without actual or constructive notice of any defects in or infirmities, claims or equities against the seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.” 41.I have reviewed the judgement; the trial court based its findings on the fact that the plaintiff did not tender evidence that he conducted due diligence as was in his own admission that he ‘has never visited the suit land but knows its location’. The trial court was further guided the Court of Appeal case of Chemney Investment Ltd Vs. Attorney General & 2 Others (2018) eKLR where the court emphasised that a bonafide purchaser would be expected to inspect the property he is buying to ascertain its physical location, including persons in occupation, developments if any that would have rung alarm bells. 42.The trial court proceeded to analyse when the occupation of the defendant started vis a vis the date of purchase and noting that the occupation was before the purchase occurred and held that the plaintiff ought to have visited and made inquiries which they failed to do. Further that no sale agreement was produced by the plaintiff. 43.I have reviewed the evidence (see supplementary Record) indeed PW1 produced the documents in the List of Documents dated 23/7/2021 namely title deed for the suit property in the name of the said vendor, transfer form, Land Control Board consent; Stamp Duty Receipt; title deed for the suit property in the name of William Owuor the plaintiff/appellant and Response to demand letter dated 2/07/2021. 44.But back to the conditions for one to successfully raise the plea of bonafide purchaser. I have seen the title deed in the name of the plaintiff dated 25/06/2021 and this therefore meets the 1st condition. 45.On the requirement for due diligence PW1 admitted in cross examination by Mr. Okero that ‘I have not visited the suit property but know the locality.’ PW1 then informed the court in re-examination that by the time he sent his agent to the suit property the title was already in his name. This therefore confirms that due diligence was not conducted before the transfer. He told the court that he was using an agent who was denied access but, in my view, if the agent had gone there before purchase and denied access it would have helped him discern there could be an issue and therefore the need for caution and further inquiries. 46.All the above point to the lack of due diligence on the part of the plaintiff. The court therefore finds no basis upon which to fault the trial court finding on the requirement for due diligence. 47.Moreover the issue of due diligence has received such prominence in our jurisprudence and one cannot merely rely on an agent or even online purchase as stated by PW1 in re-examination – see Antony Ted Andrew Hoareau Vs Mary Munthoni Wanjohi (2018) eKLR 48.Next is the requirement for proof that the plaintiff purchased the suit property for valuable consideration. PW1 evidence in cross examination was that he purchased the property in cash and paid Kshs. 3.1 million to the vendor. He obtained 500,000 – 600,000 from disposal of his grandfather’s ancestral land, his savings and disposal of his motor vehicle KBZ 247 for Kshs 500,000/-. He also stated in re-examination that he had merry go rounds and borrowed money from friends. 49.Assuming all the above is true, I find it rather strange that these friends gave money freely without any written agreements for the loan or that the plaintiff did not call them to corroborate these facts not even the merry go round members. Further I found it strange that there was no written acknowledgement of the monies paid to Stephen the vendor considering that the figures in issue are not small monies, obtained from loans, disposal of a car, ancestral property and PW1 savings. The sweat of his work! 50.This court is not persuaded that a valuable consideration changed hands and points to the defendant’s assertion that the transaction was a sham. The above analysis also speaks to the requirement on the plaintiffs bonafides. Had the plaintiff genuinely intended to buy the property in good faith there would be no such gaps. One glaring gap being the absence of a sale agreement upon which the purchase price and any agreed instalments thereto could be authenticated. 51.It has been submitted on behalf of the plaintiff that the vendor had apparent good title. In my view even if this ground succeeds it cannot be delinked from the other requirements for success of the plea of bonafide purchaser as set out in Katende Vs Haridar (supra). 52.It was further also incumbent upon William to proof to the satisfaction of the court that he had no knowledge of fraud, he purchased without notice of any fraud and he was not party to any fraud. On the part of PW1 his burden was to proof that he had no knowledge of the fraud and was not party to the same. The threshold would thus be on a balance of probabilities. I have noted that the trial court was substantively guided by the dictum of Justice Sila Munyao (Now JA) in the case of Antony Ted Andrew Hoareau Vs Mary Munthoni Wanjohi (2018) eKLR which laid the consequences of failure to carry out due diligence by a purchaser. In the said dictum the court did not hesitate to find that the defendant substantially contributed to the fraud by her neglect or default, in failing to investigate validity of a sale agreement… 53.Guided by the dictum which is longer than what I have briefly extracted above the trial court and while reproducing the same holding concluded at paragraph 35 of the judgement that he was convinced that the title was liable for cancelation. 54.The cancellation of the title is what the plaintiff/Appellant is aggrieved with. As I have already noted two title deeds were adduced in evidence by PW1 in the name of Stephen Otieno Amollo and the other in the name of William. 55.Section 26 of the Land Registration Act 2012 provides thus:-(1)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 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 –(a)On the ground of fraud or misrepresentation to which the person is proved to be a party; or(b)Where the certificate of title has been acquired illegally, unprocedurally, or through a corrupt scheme. 56.The defendants/Winnies case is that the vendors title was obtained fraudulently was void and the vendor could not pass good title. The court will be guided by the decision of the Supreme Court of Kenya in Dina Management Limited vs. County Government of Mombasa & 5 others [2023] KESC 30 (KLR) where the learned judges stated thus; -“To establish whether the appellant is a bonafide purchaser for value therefore, we must first go to the root of the title, right from the first allotment…Indeed, the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible... 57.Drawing from the Supreme Court of Kenya in Dina Management Supra an investigation of the root of the title is one of the ways of determining whether one is an innocent purchaser. This resonates with the conditions set out in Katende Vs Haridar(Supra) where the purchaser is required to show he was not aware of fraud and did not participate thereof. It follows that if the registered owner cannot successfully defend the root of its title as it is nolonger enough to dangle a title, then the title is impeachable. 58.The Court has already upheld the finding that William the appellant was not a bonafide purchaser, and this will militate against his title and I would thus find no fault in the cancellation of title based on the absence of due diligence. 59.Looking at the totality of the foregoing I will uphold the trial courts finding that the plaintiff was not a bonafide purchaser of the property. 60.But additionally, the court has noted the appellants submission and rightly so that there are only two instances for the challenge of title; where the title is obtained by fraud or misrepresentation to which the person must be proved to be a party and where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. It is contended that both of these instances have not been adduced in the instant case. 61.It is noteworthy however that the root of the plaintiff’s title is the vendors title and it was therefore dependent upon the survival of the title of the person who sold it to him and this is Stephen Otieno Amollo. The particulars of fraud outlined by Winnie were against the defendant in the Counterclaim that is Stephen Otieno Amollo and therefore the burden of proof lay on Winnie to proof the allegations of fraud particularised in paragraph 18 of the counterclaim and the plaintiff’s participation thereof. 62.The particulars have been outlined verbatim as follows; -18.1The defendant-to-the-counterclaim knew full well that he had been instructed by me to receive funds transmitted by me for the purpose of acquiring a plot in Bondo and constructing thereon a house of precise specifications I provided him with;18.2The defendant-to-the-counterclaim received from me the full sum of KShs.2,869,779.82 duly transmitted by me electronically and then did carry out my instructions of identifying and purchasing the parcel of land that is the suit property, of constructing thereon the house I had specified, and of keeping me fully apprised of the progress of construction and of the acquisition of materials required for this purpose;18.3The defendant-to-the-counterclaim awaited my departure from Bondo Town as I—30 was returning to Perth, Australia, before he secretly without my knowledge or consent signed a fraudulent transfer of land transferring the title to the suit property into his name rather than into my name as the equitable and rightful owner thereof;18.4The defendant-to-the-counterclaim then concealed from me the fact that he had secretly registered himself as the proprietor of the suit property until after our break- up in June 2021 when he began to demand I vacate the suit property, while fully aware that I was the equitable and rightful owner thereof;18.5The defendant-to-the-counterclaim then secretly, without my consent or knowledge, entered into a sham transaction with the plaintiff, purporting to have sold the suit property to the plaintiff for the sum of KShs.3,100,000.00 without any consideration passing between them, and paid for the plaintiff the sum of KShs.62,000.00 in stamp duty on the fraudulent transfer to give the sham transaction a veneer of credence;18.6The defendant-to-the-counterclaim had drawn up and did sign with the plaintiff an application for consent of the Land Control Board in Bondo dated the 8th June 2021 for a purported transfer of the title to the suit property they both knew to be false and contrary to my equitable interests in the suit property;18.7The defendant-to-the-counterclaim had drawn up and did sign with the plaintiff a transfer of land in respect of the suit property which they both knew to be false, fraudulent and contrary to my equitable interests in the suit property;18.8The defendant-to-the-counterclaim together with the plaintiff presented the false document that was the transfer of land aforementioned and procured therewith the fraudulent transfer of the title to the suit property to the plaintiff, knowing their actions to be fraudulent, unlawful, irregular and contrary to my interests as the rightful and equitable owner thereof;18.9The defendant-to-the-counterclaim has together with the plaintiff embarked on a campaign of harassment of the defendant demanding I vacate the suit property for the plaintiff, in violation of my constitutional right to property and knowing fully well that I am the rightful and equitable owner thereof. 63.Was their fraud on the part of Stephen the vendor? It is trite that the standard of proof is slightly higher than that of a balance of probabilities but not beyond reasonable doubt- see the cases of Kinyanjui Kamau vs George Kamau [2015] eKLR cited by the appellant, Vijay Morjaria v. Nansingh Madhusingh Darbar & another [2000] eKLR; Railal Gordhanbhai Patel v. Lalji Makanji [1957] E.A 314 and Virani t/a Kisumu Beach Resort v. Phoenix of East Africa Assurance Co. Ltd [2004] 2 E.A KLR 269 64.For me I think 18.3, 18.4, 18.5 and 18.7 of the particulars listed above would be more relevant for purposes of fraud including the involvement of the plaintiff/appellant in the same. I will therefore respectfully disagree with the submission that particulars of fraud against the 1st respondent were not pleaded. 65.But what is fraud? Fraud is defined under the Black’s Law Dictionary 10th Edition as“A knowing misrepresentation or knowing concealment of a material fact made to induce another to act to his or her detriment”. 66.Concerning the allegations of a sham transaction as stated in 18.5 I think this is already answered in the earlier analysis and the reasons upholding the trials courts finding that the plaintiff was not a bonafide purchaser including the absence of proof of payment of a consideration. I will not belabour the point but hold that the fact that the transaction was a sham pointed to fraud and misrepresentation making it a candidate for cancellation. 67.Additionally based on my analysis touching on the bonafides of PW1 and the gaps it can safely be stated he had knowledge of the defendants/vendors plans that they stage the transaction and went along with it, he cannot easily escape as it takes two to tango. 68.What about the allegations in 18.3 that the vendor secretly registered the suit property into his name without the knowledge and consent of the defendant (Winnie). DW1 produced mpesa transactions showing she remitted money to the defendant vendor to purchase the suit property. She also called DW2 who corroborated by testifying that she was present during the handover of the house to PW1. The defendant Stephen in the counterclaim did not produce any evidence to show that he purchased the parcel and or that it belonged to him abinitio. There was also contestation that the suit property was registered in the vendors name while Winnie was outside the country and which she discovered after the fact meaning she was kept in the dark about the transaction. DW2 indeed confirmed in cross examination that she was forced to sign a spousal consent. 69.I think the above is enough proof that both titles were obtained fraudulently and irregularly. Moreover, it is trite that there is no requirement for proof that the title holder participated in the fraud as long as there are vitiating factors. This position was aptly explained in the case of Elijah Makeri Nyangwara Vs Stephen Mungai Njuguna & Another, Eldoret ELC Case No. 609 B Of 2012 where it was stated as follows: -“... it needs to be appreciated that for Section 26(1) (b) to be operative, it is not necessary that the title holder be a party to the vitiating factors noted therein which are that the title was obtained illegally, unprocedurally or through a corrupt scheme. The heavy import of Section 26 (1) (b) is to remove protection from an innocent purchaser or innocent title holder. It means that the title of an innocent person is impeachable so long as that title was obtained illegally, unprocedurally or through a corrupt scheme. The title holder need not have contributed to these vitiating factors. The purpose of Section 26 (1) (b) in my view is to protect the real title holders from being deprived of their titles by subsequent transactions." 70.Consequently the above answers the question whether the plaintiff had discharged the burden of proving he was not party to the fraud and was not aware. He was therefore not an innocent purchaser. 71.Additionally one glaring irregularity and or vitiating factor with the plaintiff’s title was the absence of a sale agreement between William and Stephen which offended the provisions of section 3 (3) of the Law of Contract Act which reads; -No suit shall be brought upon contract for disposition of land unless, the contract which the suit is founded upon is in writing, signed by all parties thereto and the signature of each party has been attested by witnesses who is present when the contract was signed., 72.In view of the foregoing both titles had illegal roots and nothing could come out of an illegality. 73.It is the finding of this court that the trial court therefore did not err in failing to uphold the plaintiffs title on the basis of an innocent purchaser for value without notice.Did the trial court err in Finding that the defendant was not a trespasser 74.The second issue identified for determination by the trial court is whether the defendant is a trespasser in the suit property. 75.What then constitutes trespass? Section3(1) of the Trespass Act Chapter 294 of the Laws of Kenya reads; -Any person who without reasonable excuse enters, is or remains upon or erects any structure on, or cultivates or tills or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an offence. 76.The trial court relying on the above rightly stated that trespass is an intrusion by a person into the land of another who is in possession and ownership. That it also consisted of unjustifiable intrusion. 77.On this issue the trial court based on the plaintiff’s failure to establish if the suit property was free from any encumbrance held that the plaintiffs claim based on trespass against the defendant cannot succeed. That there was undisputed evidence that a housewarming ceremony was done where the defendant Winnie was handed over the house in 2019 and allowed to occupy the suit property. That the plaintiff was not a trespasser to the suit property. 78.I have reviewed the above finding vis a vis the evidence and the definition of who is a trespasser. The key word is intrusion of another’s land without the owner or the person in lawful possession. PW1 evidence is that she paid for the suit property and construction of a house thereon which Stephen did. That the house was handed over to her. It was her evidence in cross examination that she occupied the house in July 2019 and when she travelled back to Australia, she left her nephew to live in it. This evidence was not controverted by Stephen. Stephen did not lead any evidence to show that he was the one in occupation of the suit property. 79.For me I think the question whether Winnie was a trespasser in the suit property would be dependent upon a finding in her favor on the issue of constructive post. This would free her of the brand of being a trespasser. I will therefore consider the next issue which is largely the counterclaim based on the plea of a constructive trust. Whether the Defendant Respondent Proved Her Counterclaim to The Required Standard.Did the trial court err in holding there was a constructive trust in favour of the defendant and a fresh title be issued in the joint names of the Respondents. 80.The defendant Winnies case is that she had an equitable interest in the suit property having had an understanding with Stephen that she would remit money to him for purchase of the suit property including construction of a house which she did. That the suit property was being held in trust by Stephen for her. That he did not pass good title to William and instead became her trustee holding her absolute equitable interest as proprietor thereof on a constructive trust in Winnie’s favour. She sought in the counterclaim the orders which I have already set out. 81.The particulars of trust were pleaded as hereunder1.The defendant-to-the-counterclaim was instructed by me to receive funds transmitted by me for the purpose of acquiring a plot in Bondo and constructing thereon a house of precise specifications I provided him with;2.The defendant-to-the-counterclaim received from me the full sum of KShs.2,869,779.82 duly transmitted by me electronically and did carry out my instructions of identifying and purchasing the parcel of land that is the suit property, of constructing thereon the house I had specified, and of keeping me apprised of the progress of construction and of the acquisition of materials required for this purpose;3.The defendant-to-the-counterclaim’s registration of himself as the proprietor of the suit property on the title thereof created a constructive trust in my favour as I am the rightful and equitable owner thereof and made him my trustee;4.The constructive trust over the suit property created in my favour survived the fraudulent transfer of land of the title thereto by the defendant-to-the-counterclaim to the plaintiff making him also my trustee as I remain the rightful and equitable owner thereof. 82.It is trite law that a counterclaim is a separate suit and had also to be proved to the required standard by the person pleading it. In this case Winnie and who metaphorsed into a plaintiff. I will still refer to her as Winnie. 83.The defendant therein Stephen denied the trust pleading that the money was not for the alleged purpose but they used to wire each other as gifts. 84.The trial court found that the common intention between the defendant and plaintiff in the counterclaim was to acquire land and establish their home as they were in a romantic relationship. They used to send money to each other as they were cohabiting together and as at the time of the purchase gave rise to a constructive trust and that each had a beneficial share in the suit property. The trial court was guided by the case of Archer & Another Vs Archer & 2 Others (2023) which discussed the concept of constructive trust. 85.The Court of Appeal in the case of James Archer & Another Vs. Inger Christine Archer & 2 Others Civil Appeal No. 39 of 2020 in its judgement delivered on 17/3/2023 discussed trusts at length as follows; -23.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).”There are three types of trusts that can arise with respect to land, as explained in Elements of Land Law, 5th Edition by Kevin Gray and Susan Francis Gray at page 824 paragraph 7.1.11:“Trusts relating to land can be classified as either express trusts or implied trusts, the latter category subdividing into further categories of resulting and constructive trusts ... Consistently with the characteristic preoccupation of equity, the primacy of intention is exemplified in each of these three cases of trust. The trust is the express very embodiment of an intention explicitly formulated by a legal owner regarding the beneficial ownership of his land. Implied trusts arise by operation of law, but do so against a background of actual or presumed beneficial intentions as to beneficial title. Yet, although premised alike upon intended beneficial ownership, the resulting trust and the constructive trust have traditionally enjoyed distinct spheres of operation.”24.This position was confirmed by this Court (Makhandia, Ouko & M’inoti, JJ.A.) in Twalib Hatayan & Another vs. Said Saggar Ahmed Al-Heidy & 5 Others [2015] eKLR as follows:“Trusts are created either expressly (by the parties) or by operation of law. An express trust arises where the trust property, its purpose and beneficiaries have been clearly identified (see. Halsbury’s Laws of England vol 16 Butterworths 1976 at para 1452). In this case, we have a definite property and beneficiary. The purpose/intent for which the property was bought remains in dispute. This negates the existence of an express trust herein. In the absence of an express trust, we have trusts created by operation of the law. These fall within two categories; constructive and resulting trusts…”25.It is not contested that there was no express trust created with respect to the suit properties in this appeal, and no evidence of such an express trust was provided by the Appellants. The Appellants’ case therefore turns on whether a trust can be implied from the facts of the appeal. The authors of Elements of Land Law (supra) explain when a resulting trust arises as follows at page 825 in paragraphs 7.1.12:“Resulting trusts are intrinsically concerned with the money contributions laid out in the purchase of an estate in land. The beneficial ownership implied under a resulting trust gives effect to the intention presumptively disclosed by the pattern of money purchase. Thus, in the absence of any evidence of countervailing intention, a financial contribution towards the acquisition of a legal estate in the name of another normally generates a resulting trust in favour of the contributor, the latter's beneficial entitlement being directly proportional to his or her cash contribution.”26.The two main requirements for a resulting trust to arise are firstly, the intention and contribution to the purchase of the property must be contemporaneous with the taking of legal title, as was held in Pettit vs Pettit (1970) AC 777 and in Gissing vs Gissing (1971) AC 886. The relevant time frame for the existence of the required intention and contribution is therefore at the point of purchase of the land, which is the time the beneficial entitlement crystallises, and resulting trusts cannot in principle be founded on intentions, events or circumstances which arise after the date of purchase. Secondly, the clearest instances of resulting trust emerge from direct cash or other forms of financial contributions to the purchase of property at the point of purchase.27.This Court has also held in Twalib Hatayan & Another vs. Said Saggar Ahmed Al-Heidy & 5 Others (supra) and in Juletabi African Adventure Limited & another vs. Christopher Michael Lockley [2017] eKLR that the general rule here is that a resulting trust will automatically arise in favour of the person who advances the purchase money, whether or not the property is registered in his or her name………..28.On the other hand, there has been a pragmatic shift in English law towards recognising constructive trusts as the primary phenomenon in the area of implied trusts, as illustrated by the decisions in Lloyds Bank PlC vs Rosset (supra), Stokes vs Anderson (supra), Oxley v Hiscock (supra) and Stack vs Dowden (supra) which were relied on by the Appellants. There may however be instances when the two forms of implied trusts overlap arising from their common feature of the existence of demonstrated intention as regards the beneficial ownership of property which may exist from the time of purchase and thereafter, and as a result both forms of implied trusts are often simultaneously pleaded for this reason.’ 86The Supreme Court of Kenya has had an opportunity to guide on the subject in the case of Shah & 7 Others vs Mombasa Bricks & Tiles Limited & 5 Others (2023) KESC 106 (KLR) expounded further on Constructive Trust as follows; -64.On the other hand, the respondents submit that a constructive trust overrides the registered title where a party has exerted undue influence when obtaining and retaining the property transferred to him, as was in the instant case. Furthermore, section 25 (2) of the Land Registration Act provides for overriding interests, which include trusts, which can be imposed to defeat the title of a registered proprietor. The respondents further urge that, equity will impose a … trust in an agreement for the sale of land and the resultant registration whenever it is shown that the claimant obtained the … title while standing as a fiduciary …85.While Sections 25, 26 and 28 of the Land Registration Act recognize that the rights of a registered proprietor of land are absolute and indefeasible, these are only subject to rights and encumbrances noted in the register and overriding interests. The overriding interests include trusts. In our view, and in the absence of any limitation as to the trusts, this includes constructive 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.86.We have found that the doctrines of equity are part of our laws by virtue of Section 3 of the Judicature Act. And while the Constitution entitles every person to the right to property at Article 40, this right is not absolute. Article 24 provides that a right cannot be limited except by law. We have also established that, while Sections 25 and 26 of the Land Registration Act provide for the rights of a proprietor and that the certificate of title is conclusive evidence of proprietorship, Section 28 provides that the registration is subject to overriding interests. One of these overriding interests is trust …87.… 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, we therefore find that a constructive trust can be imported into a land sale agreement to defeat a registered title.”Arising from the above I have decanted the elements to be present for a resulting/constructive trust to arise firstly Intention of the parties and secondly who advances the purchase monies at the point of purchase. It does not matter whether the property is registered in their name or not. It is also an equitable remedy imposed whenever justice and good conscience demand. 87.My review of the evidence adduced reveals that indeed Winnie used to remit monies to Stephen who was a trusted lover. Stephen testified as DW3 he did not deny that they were lovers. He conceded in cross examination that Winnie used to wire him money. DW1 produced vide the list of documents dated 26/11/2021 payment receipts for remittance of funds via mobile money transfer by World Remit Pty Ltd from 12/02/2019 to 13/2/2020 made by Winnie Ouko from Australia to Stephen Amollo; Invoices to Winnie Ouko from Stepharm Enterprises Ltd 2016 for diverse dates from 30/4/2019 – 22/07/2019. While DW3 stated that these were gifts he did not produce any evidence in proof thereof. He had all the opportunity to produce electronic conversations showing how the two were gifting each other. 88.In any event the period of the transmissions coincides with the timelines pleaded by Winnie. DW2 placed his estranged husband at the center of the transmissions when she testified in cross examination that Stephen told her he had a client who was in Australia and who had his money. He did not lead any proof that he had lent money to Winnie. Based on the documents it is evident DW2 also operated the Stepharm Enterprises Ltd 2016 accounts. 89.I had no doubt that money was being remitted for the alleged purposes of purchase of the parcel and construction thereon. 90.Stephen further defence is that the monies were returned to the plaintiff in full but he adduced no proof of the remittances made to Winnie. DW3 conceded in cross examination that he had no documentary evidence to show that he used to send money to Winnie. There was also the contention that there was no power of attorney from Winnie donating him the powers to act and purchase land on her behalf. I must agree with the response that the absence of sale agreement and power of attorney does not affect a constructive trust. Based on the precedents cited this is not a requirement. 91.Arising from the foregoing it is my finding that a case for constructive trust was established as pleaded in the counterclaim. The learned trial court did not in my view err in finding there was a constructive trust in favour of the defendant. 92.The import of the above finding therefore would be to displace the allegations of trespass. Further that the equitable interest would supercede the rights of the registered owners being firstly Stephen and William. Moreover, it is trite as seen in the case of Shah & 7 Others vs Mombasa Bricks (supra) that a trust is an overriding interest. It is one of the limitations that would override the provisions of Article 40 of the Constitution of Kenya 2010 which entitles every person to the right to property. In the circumstances of the present case equity must treat the legal owner as a trustee and impose a trust as justice demands. There was therefore sufficient justification on this basis alone to cancel the titles. 93.I think I have said enough to show that the appeal is not merited and I find no basis upon which to interfere with the decision of the trial court. 94.The appeal is hereby dismissed with costs to the 1st Respondent.Orders Accordingly DELIVERED AND DATED THIS 29TH DAY OF JUNE 2026HON. LADY JUSTICE A.E. DENAJUDGE29/06/2026Judgement delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:Mr. Saluny for the AppellantMr. Sala for 1st RespondentCourt Assistant: Dorothy Wanyanga