Lewa v Ngala & 2 others (Sued as Administrators of the Estate of Charo Ngala Mwagandi) (Environment and Land Appeal E019 of 2024) [2025] KEELC 4613 (KLR)
The bottom line
#Kenya's Environment and Land Court in Malindi ruled that a family who bought land in 1990 and occupied it keeps ownership, even against the deceased seller's registered estate.
What this practically means
#Executive summary
#Key legal issues
#Existence and validity of the sale agreements
The appeal court found the sale agreements existed, were supported by consideration and signed by the deceased, and that the trial court erred in finding them fraudulent.
The agreements of October 8 and October 31, 1990 recorded installments of the purchase price, each witnessed; the October 31, 1990 agreement bore the deceased's signature as Charo Ngala at line 26. The respondents received payments even after the deceased's death. The Magistrate's findings on fraud, forgery and the children's ages were unsupported by any evidence, and forgery was never pleaded.
Possession of the suit property
The court found the Appellant took possession of the six acres in 1990 pursuant to the sale.
The defence evidence itself confirmed the deceased settled the Appellant on the land and that the family had never asked him to vacate. PW2 witnessed the demarcation of the 6-acre parcel. The Appellant built a residence, cultivated cash crops and planted trees, activities inconsistent with mere occupation and capable of defeating the registered owner's title.
Whether the sale could prevail against the registered title of the estate
Yes - a constructive trust arises in favour of a purchaser who has paid and taken possession, and such trust is an overriding interest binding the registered proprietor.
Sections 25, 26 and 28 of the Land Registration Act make registered title indefeasible but subject to overriding interests, which include trusts; a constructive trust is an equitable remedy imposed where justice and good conscience require, qualifying the Article 40 property right under Article 24. The Supreme Court in Shah v Mombasa Bricks & Tiles confirmed constructive trusts may be imported into land sale agreements.
Jurisdiction over adverse possession claim
The court declined to consider the adverse possession alternative claim, holding magistrates' courts lack jurisdiction over such matters.
Relying on Sugawara v Kiruti, the court noted that magistrates' courts have no jurisdiction to entertain adverse possession claims. That alternative head of relief was therefore not determined, though the declaration, transfer order and injunction were granted under the sale-agreement/constructive-trust basis.
Correctness of the Magistrate's judgment
The Magistrate misdirected himself by focusing on the form of the agreements rather than their substance and by making findings of fraud and forgery without evidential foundation.
The trial court emphasised lack of visible signature and payment record despite witness testimony and the deceased's signature; it contradicted itself by finding no transaction occurred while simultaneously finding the Appellant breached the agreement; and it speculated about two agreements over the same land without hearing evidence on the revision of the purchase price from Kshs 19,000 to Kshs 40,000.
Legal principles established
#- A first appellate court must re-evaluate the evidence afresh and reach its own conclusions, making allowance for the trial court's advantage of seeing and hearing witnesses.
- A constructive trust may be imported into a land sale agreement notwithstanding a registered title, as an overriding interest under Section 28 of the Land Registration Act.
- Allegations of forgery must be explicitly pleaded and rigorously substantiated by the party alleging them.
- Equity protects a purchaser who has paid and taken possession under a consummated sale agreement.
Court orders
#- 1.Judgment of the trial court dated April 23, 2024 set aside in its entirety and substituted with judgment granting the Appellant's claim as prayed in the plaint
- 2.Declaration that the Plaintiff is the legal owner of the 6 acres in Plot No. Gede/Mijomboni/486 by virtue of the sale agreements
- 3.Defendants ordered to transfer the 6 acres of the suit property to the Plaintiff
- 4.Permanent injunction restraining the Defendants, their agents, servants, family members and anyone acting on their behalf from trespassing on, entering, selling, transferring or dealing with the Plaintiff's 6-acre portion of Plot No. Gede/Mijomboni/486
- 5.Costs of the appeal and of the lower court awarded to the Appellant
- On appeal from
- Magistrates' Court
- null
- Jurisdiction invoked
- First appeal from the magistrates' court; appeal against judgment and decree in a land claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lewa v Ngala & 2 others (Sued as Administrators of the Estate of Charo Ngala Mwagandi) (Environment and Land Appeal E019 of 2024) [2025] KEELC 4613 (KLR)", Case Analysis (2025). Not stated in extract (Memorandum of Appeal dated May 24, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4613/eng@2025-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.