Rwigi v Karuthu & another (Environment & Land Case E011 of 2022) [2025] KEELC 747 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a constructive trust arose between the Plaintiff and the 1st Defendant
A constructive trust arose in favour of the Plaintiff after he paid the full purchase price and was put into possession
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.
Whether the Plaintiff has an overriding interest in the suit property
Yes - the constructive trust is an overriding interest under section 28(b) of the Land Registration Act
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.
Whether the 2nd Defendant was a bona fide purchaser for value without notice
No - he failed to prove good faith and lack of notice
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.
Burden of proof on the alleged forgery of the sale agreement signature
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
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.
Whether the 2nd Defendant's title should be cancelled and the register rectified
Yes - under section 80 of the Land Registration Act the 2nd Defendant's certificate of title is impeachable and was ordered cancelled
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.
Legal principles established
#- 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
#- 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.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.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.A declaration that the 2nd Defendant has no good title in respect of the suit land
- 5.Cancellation of the title deed issued to the 2nd Defendant and reinstatement of the 1st Defendant's name in the register forthwith
- 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.A permanent injunction restraining the Defendants from trespassing, entering, or interfering with the Plaintiff's quiet occupation and use of the suit land
- 8.The Plaintiff to have the costs of the suit
- 9.Dismissal of the 2nd Defendant's Counterclaim
- Jurisdiction invoked
- Article 162(2) of the Constitution (Environment and Land Court jurisdiction); land dispute heard in the first instance
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.