Mulili v Mutisya & another (Suing as the administrators of the Estate of the Late Philip Mutisya Mwove) (Environment and Land Appeal E033 of 2023) [2025] KEELC 7350 (KLR)
The bottom line
#A Kenyan family who bought land in 1973 but never got the title transferred kept the land, because 45 years of occupation created a constructive trust defeating the registered owner's title.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of subordinate courts over adverse possession claims
The trial magistrate had jurisdiction to determine the adverse possession claim; the preliminary objection on jurisdiction was not merited and was overruled
The court traced jurisdiction from Article 162(2)(b) of the Constitution, Section 13(2) of the ELC Act and Section 9(a) of the Magistrates' Courts Act, 2015, read with Section 26 of the ELC Act. Relying on Patrick Ndegwa Munyua, it held gazetted magistrates with pecuniary jurisdiction may handle title and occupation disputes. Despite conflicting decisions on adverse possession in subordinate courts, the court found the prevailing consensus supported jurisdiction.
Indefeasibility of registered title versus overriding interests
Although the suit land is registered in the name of the Appellant's late father, the registered title is subject to overriding interests including constructive trusts
Sections 24(a) and 26(1) of the Land Registration Act vest absolute and indefeasible ownership in the registered proprietor. However, following the Supreme Court in Arvind Shah and the Court of Appeal in Archer, trusts - including constructive trusts - are overriding interests under Section 28 that limit the right to property under Article 24 of the Constitution and can defeat registered title.
Whether the Respondents proved long occupation founding a constructive trust
The Respondents' family purchased the land in 1973, occupied and developed it for 45 years, discharging the evidentiary burden on a balance of probabilities
PW1 produced a 1973 sale agreement; a survey report confirmed two permanent buildings; PW2 confirmed occupation and burial of relatives on the land. DW1 admitted obtaining the title only in 2018 and demanding vacant possession. The court found it dishonest for the Defendant's family to withhold transfer after decades of peaceful possession, justifying imposition of a constructive trust against unjust enrichment.
Whether the trial court erred in dismissing the Counterclaim on a preliminary objection
The court found no merit in the challenge to the dismissal of the Counterclaim; the jurisdictional basis for the objection failed
The Counterclaim had been dismissed on a preliminary objection that the court lacked jurisdiction because the title arose from land adjudication under the Land Adjudication Act and no appeal under Section 29 had been filed. On appeal, the court held the trial court had jurisdiction over adverse possession matters and overruled the objection, thereby sustaining the trial court's approach.
Legal principles established
#- A preliminary objection is a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained
- A court's jurisdiction flows from the Constitution or legislation and cannot be conferred by parties or arrogated by the court itself
- Duly gazetted magistrates with requisite pecuniary jurisdiction have power to handle cases involving occupation of and title to land
- Registration as proprietor vests absolute ownership, but the certificate of title is subject to overriding interests, including trusts, which include constructive trusts
- A constructive trust can be imported into a land sale agreement to defeat a registered title
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the Respondents
- On appeal from
- Chief Magistrate's Court at Kangundo
- ELC No. 98 of 2019
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; Section 13(2) of the Environment and Land Court Act; Section 26 of the Environment and Land Court Act read with Section 9(a) of the Magistrates' Courts Act, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mulili v Mutisya & another (Suing as the administrators of the Estate of the Late Philip Mutisya Mwove) (Environment and Land Appeal E033 of 2023) [2025] KEELC 7350 (KLR)", Case Analysis (2025). ELC Appeal (Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7350/eng@2025-10-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.