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ELCPartially Allowed· [2025] KEELC 747 (KLR)

Rwigi v Karuthu & another (Environment & Land Case E011 of 2022) [2025] KEELC 747 (KLR)

Environment and Land Court
20 February 2025
11,175 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~45 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer who paid fully and occupied the land kept it even after the seller resold it to a later buyer.

What this practically means

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Executive summary

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The Plaintiff sued claiming he purchased Land Parcel No. Nyayo Sirimoni Scheme/1081 from the 1st Defendant under an agreement dated 2 April 2008, paid the full purchase price of Kshs 250,000 and was placed in possession, whereupon a constructive trust arose in his favour. He sought declarations that his interest was overriding and indefeasible, that the 1st Defendant's subsequent sale and transfer of the land to the 2nd Defendant in 2018 was null and void, cancellation of the 2nd Defendant's title, transfer of the land to him, and a permanent injunction. The 1st Defendant denied selling to the Plaintiff, alleging forgery of the sale agreement and that the 2nd Defendant was a bona fide purchaser. The 2nd Defendant counterclaimed for injunction and eviction, alleging the Plaintiff's claim was time barred. The court framed four issues. It found the Plaintiff proved the sale agreement on a balance of probabilities; the burden shifted to the 1st Defendant to prove forgery, which she failed to discharge, having called no document examiner and made no police complaint. Applying the Supreme Court's decision in Shah v Mombasa Bricks & Tiles and the Court of Appeal's decision in Macharia Mwangi Maina, the court held a constructive trust arose in the Plaintiff's favour upon full payment and taking of possession, which is an overriding interest under sections 25 and 28 of the Land Registration Act. The 2nd Defendant failed to prove due diligence and lack of notice: he made no inquiries about the Plaintiff's occupation, admitted awareness that the Plaintiff tilled the land, and never sought the lease agreement referenced in his own sale agreement. The 2nd Defendant's counterclaim was dismissed. Judgment was entered for the Plaintiff with declarations of an overriding constructive trust, nullity of the sale to the 2nd Defendant, cancellation of the 2nd Defendant's title, reinstatement of the 1st Defendant's name in the register, an order compelling transfer to the Plaintiff, a permanent injunction, and costs.

Key legal issues

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01

Whether a constructive trust arose between the Plaintiff and the 1st Defendant

Holding

A constructive trust arose in favour of the Plaintiff after he paid the full purchase price and was put into possession

Reasoning

The Plaintiff produced a sale agreement dated 2 April 2008 with an acknowledgment note for full payment of Kshs 250,000, signed before an advocate, plus the 1st Defendant's original letter of offer and receipts which she never claimed were lost. All witnesses confirmed the Plaintiff's occupation and development since 2008. The 1st Defendant claimed forgery but produced no document examiner, made no police complaint, and never attempted eviction. Applying Macharia Mwangi Maina and Shah v Mombasa Bricks & Tiles, the trust arose automatically on payment of purchase money.

p. 12
02

Whether the Plaintiff has an overriding interest in the suit property

Holding

Yes - the constructive trust is an overriding interest under section 28(b) of the Land Registration Act

Reasoning

Section 25 subjects a proprietor's rights to liabilities, rights and interests declared by section 28 not to require noting on the register, including trusts. Section 28(b) expressly lists trusts including customary trusts. The Supreme Court in Shah confirmed that constructive trusts fall within these overriding interests, so the transfer and registration in favour of the 2nd Defendant did not extinguish the Plaintiff's beneficial interest.

p. 14
03

Whether the 2nd Defendant was a bona fide purchaser for value without notice

Holding

No - he failed to prove good faith and lack of notice

Reasoning

Beyond the alleged search, no copy of which was produced, the 2nd Defendant made no inquiries about the Plaintiff in occupation. His own agreement required the vendor to give written notice to a lessee to vacate, but he never asked the lessee's identity or sought a lease agreement. His replying affidavit in Meru ELC 12 of 2020 admitted awareness that the Plaintiff was tilling the land. Cultivation of seasonal crops amounts to possession and should have put him on notice.

p. 15
04

Burden of proof on the alleged forgery of the sale agreement signature

Holding

Once the Plaintiff produced the agreement bearing the 1st Defendant's signature, the burden shifted to her to prove forgery, which she failed to do

Reasoning

Under sections 107 and 109 of the Evidence Act, the Plaintiff discharged his burden by producing the agreement and acknowledgment note both bearing the 1st Defendant's signature and the advocate's stamp. The 1st Defendant alleged forgery but called no document examiner and made no complaint to the police or DCI despite knowing of the agreement since at least 2020.

p. 12
05

Whether the 2nd Defendant's title should be cancelled and the register rectified

Holding

Yes - under section 80 of the Land Registration Act the 2nd Defendant's certificate of title is impeachable and was ordered cancelled

Reasoning

By the time of the transfer the 1st Defendant was already a constructive trustee; the 2nd Defendant knew or ought to have known of the Plaintiff's interest and ignored it. It would be unjust and inequitable to allow him to retain the land, so rectification by cancellation and reinstatement of the 1st Defendant's name was ordered, followed by transfer to the Plaintiff.

p. 18

Legal principles established

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  • A constructive trust arises in favour of a person who advances the purchase money and is put into possession, and such trust is an overriding interest under section 28 of the Land Registration Act that need not be noted on the register
  • A trustee cannot validly sell or transfer land held under a constructive trust
  • The party alleging due diligence bears the burden of proving it
  • A purchaser who fails to inquire into occupation of the land cannot claim to be a bona fide purchaser without notice

Court orders

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  1. 1.A declaration that the plaintiff has an overriding interest in respect of Land parcel No. Nyayo Sirimoni Scheme/1081 and his rights and interests over the said land are indefeasible
  2. 2.A declaration that the 1st Defendant's rights over the suit land were extinguished, that a constructive trust in favour of the Plaintiff arose, the 1st Defendant held the land in trust for the Plaintiff, and the 1st Defendant was barred by the doctrine of proprietary estoppel from selling the land to the 2nd Defendant
  3. 3.A declaration that the sale of the suit land by the 1st Defendant to the 2nd Defendant and the subsequent transfer and registration was unlawful, null and void ab initio
  4. 4.A declaration that the 2nd Defendant has no good title in respect of the suit land
  5. 5.Cancellation of the title deed issued to the 2nd Defendant and reinstatement of the 1st Defendant's name in the register forthwith
  6. 6.An order requiring the 1st Defendant to sign all relevant documents to transfer the land to the Plaintiff, and in default, the Deputy Registrar to sign on her behalf
  7. 7.A permanent injunction restraining the Defendants from trespassing, entering, or interfering with the Plaintiff's quiet occupation and use of the suit land
  8. 8.The Plaintiff to have the costs of the suit
  9. 9.Dismissal of the 2nd Defendant's Counterclaim

Authorities

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Legislation

  • Evidence ActSection 107
  • Evidence ActSection 109
  • Land Registration ActSection 24
  • Land Registration ActSection 25
  • Land Registration ActSection 26(1)
  • Land Registration ActSection 28(b)
  • Land Registration ActSection 80
  • Limitation of Actions ActSection 26
  • Civil Procedure ActSection 27(1)
  • Registered Land Act (repealed)Sections 126(1) and 163

Cases cited (18)

  • Shah & 7 Others vs Mombasa Bricks & Tiles Limited & 5 Others
    (Petition 18 (E020) of 2022) (2023) KESC 106 (KLR)
  • Dina Management Limited vs County Government of Mombasa & 5 Others
    (Petition 8 (E010) of 2021) (2023) KESC 30 (KLR)
  • Independent Electoral and Boundaries Commission & Another vs Mule & 3 Others
    (Civil Appeal 219 of 2013) (2014) KECA 890 (KLR)
  • RG Patel vs Lalji Mukanji
    (1957) E.A 314
  • Meshack Orieny & Another vs National Bank of Kenya
    Kisumu Civil Appeal No. E016 of 2023
  • Katende vs Haridar & Company Limited
    (2008) 2 E.A 173
  • Khadija Mohammed vs Amina Badi Duba & Mohamed Abdul Rahman
    Malindi Civil Appeal No. 83 of 2019
  • Peter Ndungu Njenga vs Sophia Watiri Ndungu
    (2000) eKLR
  • Twalib Hatayan & another vs Said Saggar Ahmed Al-Heidy & 5 others
    (2015) eKLR
  • Macharia Mwangi Maina & 87 Others vs Davidson Mwangi Kagiri
    (2014) eKLR
  • Mwangi & another v Mwangi
    (1986) KLR 328
  • Mutsonga v Nyati
    (1984) KLR 425
  • Kanyi v Muthiora
    (1984) KLR 712
  • Lwanga vs Mubiru and Others
    (Civil Appeal 18 of 2022) [2024] UGSC 7
  • Jones v. Smith
    [1841] I Hare 43
  • Yakobo M. N Senkungu & Others v. Cresencio Mukasa
    Civil Appeal No 17 of 2014
  • Kenya Power & Lighting Co. Limited vs Sheriff Molana Habib
    (2018) eKLR
  • Giella vs Cassman Brown & Co. Ltd
    (1973) EA 358
Jurisdiction invoked
Article 162(2) of the Constitution (Environment and Land Court jurisdiction); land dispute heard in the first instance

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Rwigi v Karuthu & another (Environment & Land Case E011 of 2022) [2025] KEELC 747 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/747/eng@2025-02-20

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