NJA v ZJA alias ZP (Civil Appeal 55 of 2020) [2023] KECA 937 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that even family members holding land titles must prove they acquired them properly, and non-owners can earn a share through contributions.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the appellant to challenge the transfers
The point failed because it was raised for the first time on appeal and was neither raised at trial nor addressed in the impugned judgment.
The respondent's counsel argued the appellant should have sued through his late mother's estate as an heir or dependent, relying on authorities on intestate succession. The Court agreed that locus standi is a jurisdictional issue that must be raised at the trial court, which was the right forum, and since it was not raised there nor determined in the judgment, nothing turned on the point.
Whether fraud was proved in the acquisition of the suit properties
The appellant proved irregularities amounting to fraud in the transfers, including use of a stranger's PIN and blank certifications, despite that ground not being specifically pleaded.
The respondent admitted the PIN on the transfer forms belonged to a clerk of the advocate and that she was out of the country when the transfers were purportedly signed. The transfer documents lacked the vendor's PIN and advocate certifications required under the then-applicable Registered Land Act. The Court held the transfers were a misrepresentation of facts and therefore irregular and fraudulent, and that unpleaded fraud could be considered where evidence and submissions were led.
Whether a trust existed in favour of the appellant over Plot XX
A constructive trust existed because Plot XX was family property in which the appellant had an equitable beneficial interest notwithstanding the respondent's legal title.
The trial judge erred in holding that because the appellant used the family property as loan security and the respondent repaid Kshs 3,250,000, he lost all beneficial interest. Being family property, either sibling could use it; there was no evidence the mother objected to the use as security, indicating an acknowledged right, and no evidence that the repayment exhausted the appellant's interest. The trial court should have quantified his beneficial share.
Whether a trust existed in favour of the appellant over Plot X/XX
A constructive trust also existed over Plot X/XX because the appellant contributed time and energy to its development and management, increasing its value, even though he did not pay for its purchase or construction.
The Court agreed with the trial judge that the respondent bought and developed Plot X/XX with her own resources, so the appellant proved no financial contribution to acquisition or construction. However, the respondent failed to explain under what circumstances the appellant entered and occupied the building; he managed the property, collected rents, and cared for their mother while the respondent lived abroad. This gave him an equitable interest enforceable as a constructive trust.
Legal principles established
#- On a first appeal, the Court of Appeal must reconsider and evaluate the evidence itself and draw its own conclusions, while making due allowance for having neither seen nor heard the witnesses.
- A registered proprietor whose root of title is under challenge must go beyond the instrument of title and prove the legality of how the title was acquired.
- Allegations of fraud must be strictly pleaded and proved to a standard higher than the ordinary balance of probabilities.
- Even where a particular act of fraud was not pleaded, it may be considered if evidence is led on it during trial, submissions are made, and the matter is left for the court to determine.
- A constructive trust may be implied where a party with no legal title has an enforceable equitable beneficial interest in property held by another.
Court orders
#- 1.The judgment of the ELC (A. Omollo, J) dated January 23, 2020 is set aside
- 2.Pursuant to Rule 33 of the Court of Appeal Rules, the proceedings are remitted back to the ELC before a Judge other than A. Omollo, J, with directions to receive additional evidence to assess and determine the value of the beneficial interest of the appellant and the respondent over Plot Nos 59 and X/XX, and thereupon enter Judgment based on those findings
- 3.The Deputy Registrar of the Court of Appeal to send a copy of the judgment to the Deputy Registrar of the ELC, Mombasa, to place the file before the Duty Judge for directions as to the fresh hearing and disposal
- 4.No order as to costs, as this is a family matter
- On appeal from
- Environment and Land Court
- Jurisdiction invoked
- First appeal to the Court of Appeal, with power under Rule 33 of the Court of Appeal Rules to remit proceedings and make incidental or consequential orders
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mbogoh & another v Tonui - Managing Director & 5 others (Environment and Land Case E038 & E049 of 2025 (Consolidated)) [2026] KEELC 2906 (KLR)[2026] KEELC 2906 (KLR)14 May 2026
- Kenduiywa (Being Next Friend and Guardian Ad Litem of Sawe Cheroigin) v Cheroigin (Environment and Land Appeal E007 of 2022) [2026] KEELC 540 (KLR)[2026] KEELC 540 (KLR)5 Feb 2026
Cite this brief
#Cite this brief
Caselaw, "NJA v ZJA alias ZP (Civil Appeal 55 of 2020) [2023] KECA 937 (KLR)", Case Analysis (2023). Court of Appeal at Mombasa (appeal from ELC judgment of A. Omollo, J, delivered by S. Munyao, J). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/937/eng@2023-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.