Kembo (Appealing as the Administrator of the Estates of Agustino Okwahela Kembo - Deceased) v Namukuru (Suing in Her Capacity as the Administrator of Joshua Mukenya Mutokaa - Deceased) (Environment and Land Appeal E006 of 2024) [2025] KEELC 6770 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that paying for land and living on it for decades creates a trust, even without the title.
What this practically means
#Executive summary
#Key legal issues
#Whether a trust was pleaded and proved
The appeal court found that a constructive trust and proprietary estoppel arose from the 1978 sale agreements, payment of purchase price, and continuous exclusive occupation from 1985 to 2022.
The appellant produced sale agreements dated 15/3/1978 and 23/8/1987 together with acknowledgment notes, and exclusive, uninterrupted possession from 1985 was undisputed. The registered owner vacated in 1985, sanctioned the entry, and between 2003 and 2013 took no successful recovery proceedings. These facts manifested promise, reliance, detriment, unconscionability and unjust enrichment, satisfying the ingredients of constructive trust and proprietary estoppel under equity and the Land Registration Act.
Whether the respondent's reliance on eviction orders and trespass succeeded
The counterclaim failed; the eviction decree relied on had been quashed or had expired under the limitation regime, and no valid recovery proceedings between 2013 and 2022 were proved.
The amended eviction order predated the quashed Land Disputes Tribunal award. A decree expires after 12 years under Section 4(4) of the Limitation of Actions Act. The deceased's own pleadings admitted no recovery proceedings after 2009, and DW1 confirmed consensual entry and occupation. Trespass under Section 3(3) of the Trespass Act required unjustified entry interfering with immediate exclusive possession, which was not established.
Whether the trust claim was defeated by limitation
Section 20 of the Limitation of Actions Act does not apply to actions by a beneficiary under a trust, so the trust claim was not statute-barred.
Section 20 exempts actions by beneficiaries under trust in trust property. Case law cited establishes that Section 20(2) does not apply to customary trusts, and Section 3(7) of the Law of Contract Act excepts oral land sale contracts coupled with part performance for agreements before June 2003, preserving the appellant's claim despite the 1976-78 transactions.
Legal principles established
#- A constructive trust may be found from a sale of land coupled with payment of purchase price, part performance and exclusive possession, constituting an overriding interest.
- A court decree expires after 12 years under Section 4(4) of the Limitation of Actions Act, and post-judgment proceedings thereafter are statute-barred.
- A party who wishes to rely on limitation as a defence must plead it in the defence.
Court orders
#- 1.The appeal is allowed.
- 2.The judgment of the trial court dismissing the appellant's claim and allowing the respondent's counterclaim is set aside.
- 3.Costs of the appeal and at the lower court to the appellant.
- On appeal from
- Principal Magistrate's Court, Kitale
- Not stated (adjudicated suit arising from Kitale PMC Land Case No. 20 of 2006 history)
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over the trial court's judgment dated 12/2/2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kembo (Appealing as the Administrator of the Estates of Agustino Okwahela Kembo - Deceased) v Namukuru (Suing in Her Capacity as the Administrator of Joshua Mukenya Mutokaa - Deceased) (Environment and Land Appeal E006 of 2024) [2025] KEELC 6770 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6770/eng@2025-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.