Ensi Investments Limited v Were (Environment and Land Appeal 36 of 2020) [2024] KEELC 5471 (KLR)
The bottom line
#A Kenyan court confirmed that land bought with other people's money is held in trust for them, even without a written sale agreement.
What this practically means
#Executive summary
#Key legal issues
#Whether absence of a written sale agreement under section 3(3) of the Law of Contract Act renders the respondent's titles unlawful
No. A constructive trust existed because the appellant purchased the suit land as trustee using members' funds; where a trust exists, the writing requirement does not apply and the disposition is lawful.
The court held that section 3(3) permits three co-equal modes of lawful disposition: written contract, public auction, or a resulting, implied or constructive trust. The appellant received the purchase price from the respondent and other CITAM Karen members and used it to buy the land from Mary Mulandi; it applied none of its own resources. It therefore held the land on trust, and demanding a sale agreement was unconscionable and superfluous. The respondent's titles were lawfully acquired.
The character of the appellant's acquisition of Mavoko Town Block 3/2359
The appellant did not own the land; registration in its name made it a trustee for the contributing members, and the real sale occurred when Mary Mulandi received the members' consideration.
The court found as a fact that the appellant purchased the 40 acres ON BEHALF OF the CITAM Karen members using money they deposited. Since the consideration was not the appellant's, the transfer to it did not confer beneficial ownership. Its claim of 'inadvertence and mistaken belief' in issuing three titles was dismissed as a red herring and pure dishonesty.
Legal principles established
#- Under section 3(3) of the Law of Contract Act, a written contract is not the only lawful mode of disposition of an interest in land; a public auction or a resulting, implied or constructive trust suffices equally.
- A person who purchases land wholly with funds of others holds it as trustee for them and cannot rely on absence of a written sale agreement to defeat their titles.
- A registered title enjoys constitutional and statutory protection only if lawfully acquired; an illegally obtained title cannot be accorded legal protection.
Court orders
#- 1.The appeal is dismissed with costs to the respondent
- On appeal from
- Senior Principal Magistrate's Court, Mavoko
- SPMCC No. 333 of 2018
- Jurisdiction invoked
- First appellate jurisdiction over the Magistrates' Court (ELC appeal from Mavoko SPMCC No. 333 of 2018)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mwandau & 2 others v Challa Hotel Limited (Environment and Land Case E016 of 2023) (Environment and Land) [2025] KEELC 6930 (KLR)[2025] KEELC 6930 (KLR)14 Oct 2025
Cite this brief
#Cite this brief
Caselaw, "Ensi Investments Limited v Were (Environment and Land Appeal 36 of 2020) [2024] KEELC 5471 (KLR)", Case Analysis (2024). Mavoko SPMCC No. 333 of 2018 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5471/eng@2024-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.